Citation Nr: 1318483 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 07-02 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for bilateral hearing loss disability. 2. Entitlement to a compensable initial rating for ingrown toenail of the right great toe. 3. Entitlement to a compensable initial rating for ingrown toenail of the left great toe. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from February 2001 to February 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2005 and September 2008 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in February 2011, and a transcript of the hearing is associated with his claims folder. That acting Veterans Law Judge remanded the case to the RO for additional development in October 2011. The acting Veterans Law Judge who presided over the hearing is no longer employed by the Board. The Veteran was offered but declined an opportunity for a hearing before another Veterans Law Judge in March 2013. FINDINGS OF FACT 1. The Veteran does not have a current left ear hearing loss disability. 2. Any current hearing loss disability of the right ear was not manifest in service and is unrelated to service. 3. The ingrown toenails of the right and left great toes do not result in disability comparable to a moderate foot injury. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss disability are not met. 38 U.S.C.A. § 1110, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. The criteria for a compensable rating for ingrown toenail of the right great toe have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, 4.118, Diagnostic Codes 5284, 7819 (2012). 3. The criteria for a compensable rating for ingrown toenail of the left great toe have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.71a, 4.118, Diagnostic Codes 5284, 7819 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; (3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by letter dated in May 2005. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran July 2008 and April 2009 correspondence that fully complied with Dingess. The case was thereafter readjudicated, curing the notice timing error. Prickett v. Nicholson, 20 Vet. App. 370 (2006). Any notice error regarding the claims for service connection for ingrown toenails are harmless, as service connection has been granted. Dingess. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for hearing loss disability and ingrown toenails of the right and left great toe in April 2008, May 2008, and November 2011. The examination reports are adequate for rating purposes as they contain sufficient information for VA to make a fair and impartial determination regarding the claims. VA medical opinions have been obtained regarding the Veteran's hearing loss, and the most recent opinion contains an adequate rationale. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's October 2011 remand by obtaining examining the Veteran for the disabilities at issue, obtaining an adequate medical opinion regarding the relationship between any hearing loss and service, providing all information necessary to rate the Veteran's ingrown toenail disorders under appropriate rating criteria, and readjudicating the claims. During the Veteran's February 2011 hearing, the Board advised and assisted him concerning his claims and advised him that he could file for temporary total rating benefits under 38 C.F.R. § 4.30 (2012) following toenail surgery. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Hearing loss analysis The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this case, the Veteran contends that he has current bilateral hearing loss due to acoustic trauma during his combat service. The Board recognizes that the Veteran is a combat Veteran. VA concedes the Veteran's exposure to acoustic trauma in service in light of 38 U.S.C.A. § 1154(b). The question is whether he currently has a hearing loss disability of either ear, and if so, whether it is a result of that in-service acoustic trauma. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability (i.e., one meeting the requirements of 38 C.F.R. § 3.385, as noted above) and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for hearing loss. Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Service treatment records to include audiometric test results from January 2001, January 2004, and November 2004 show normal hearing in service. On VA examination in April 2008, the Veteran's pure tone testing was normal bilaterally, as was his left ear word discrimination of 100 percent, but his right ear word discrimination was 92 percent, meeting the criteria of 38 C.F.R. § 3.385 for right ear hearing loss disability. In a June 2008 addendum to the examination report, the examiner indicated that military noise exposure did not cause a hearing loss, but did not give reasons for that opinion. The Board remanded the case to the RO for another VA examination, which was conducted in November 2011. On that examination, the pure tone threshold and speech recognition results for each ear were normal. They did not show hearing loss disability of either as defined by 38 C.F.R. § 3.358. The findings included a speech recognition ability of 96 percent in the right ear, and 94 percent in the left ear. The examiner indicated that any current hearing loss disability was not at least as likely as not (a probability of at least 50 percent) caused by or a result of any event in service. The reasons included that the Veteran had normal hearing and that there had been no significant threshold shift in the pure tone test results. Based on the evidence, it appears that the Veteran may have had a right ear hearing loss disability at the time of the April 2008 VA examination. However, two examiners have indicated that any such hearing loss disability was unrelated to his service, and the most recent examiner's opinion that the reason for that would be that there was no significant threshold shift is an adequate rationale on the matter. Accordingly, the Board concludes that any right ear hearing loss disability which has existed during the course of the claim is unrelated to service. Secondly, the Board concludes that the preponderance of the evidence indicates that the Veteran does not have a current left ear hearing loss disability; that is, there is no competent evidence of a left ear hearing loss disability during the course of the claim. Both the April 2008 and the November 2011 VA examination reports support this conclusion. No left ear hearing loss disability as defined by 38 C.F.R. § 3.385 is shown. This being the case, service connection must be denied for left ear hearing loss disability. In the absence of a current disability, service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). The Board notes that the Veteran has claimed that he has hearing loss disability of each ear, and that it is related to service. However, as a layperson, he is not competent to indicate either that he has a current hearing loss disability, or that it is related to service. Medical evidence is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Ingrown toenail disorders Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App.411, 414 (1995). At the outset, the Board observes that the Veteran appealed a decision which granted service connection for his ingrown great toenail disorders. In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The Board concludes that the disabilities have not significantly changed and that uniform ratings are warranted. During the pendency of this appeal, the criteria for rating skin disabilities were revised, effective October 23, 2008. Those amendments only apply to applications for benefits received on or after October 23, 2008, or where the Veteran specifically requests review under those regulations. 73 Fed. Reg. 54,708 (Sept. 23, 2008). Here, the Veteran has not requested such a review, and his application for benefits was received before October 23, 2008. Therefore, the amended regulations are not for application in this appeal. The Veteran's right and left great ingrown toenail disorders have been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5284. Diagnostic Code 5284 is for foot injuries, and provides for a 10 percent rating when there is a moderate foot injury, a 20 percent rating when there is a moderately severe foot injury, and a 30 percent rating when there is a severe foot injury. Under 38 C.F.R. § 4.118, Diagnostic Codes 7819, benign skin neoplasms are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800); as scars or as impairment of function (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805) (2012). In this case, the Veteran's ingrown toenail disorders do not consist of disfigurement of the head, face, or neck. Hence, the disabilities are to be rated either as scars or as impairment of function, whichever results in the higher rating. In every instance where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). On VA examination in May 2008, the Veteran's gait and station were satisfactory. He had some malformation of the medial great toenail bilaterally with some curvature and ingrowing of the toenail. There was slight redness of the medial side of both toes, but no infection. The diagnosis was chronic bilateral great toe medial ingrown toenails. The Veteran indicated that he was employed for a construction company as a laborer and that it affected the performance of his occupational tasks. On VA examination in November 2008, the Veteran's lower extremity strength was 5/5. Post operative bilateral ingrown toenails were present, without any swelling or pain of the left or right great toe. There was no gait abnormality, imbalance, incoordination, or spasticity, and no skin breakdown. On VA evaluation in December 2009, the Veteran was status post left and right great toenail border matrixectomies with no pain at that time. There was increased callus tissue of the distal right and left great toenail medial corners with regrowth of the nail borders but no pain to palpation or erythema. On VA evaluation in February 2010, the Veteran complained of painful ingrown right and left great toenails, and he was requesting matrixectomies. There was cryptosis (ingrowing) of the right and left great toenail medial nail borders with pain to palpation without erythema or purulence. Matrixectomies were performed. Later in February 2010, the Veteran indicated that his toenails continue to grow back despite matrixectomies, and that the procedure prevents him from performing daily activities each time he has it done. He has to wear sandals just after each surgery for about a week and a half, runs the risk of infection, and has pain, and there is time that he cannot work. He requested an extraschedular rating. On VA podiatry evaluation in March 2010, the Veteran's medial right and left first toenail borders were healed with some dried eschar. There was no edema or erythema. There was increased callus tissue of the distal right and left great toe medial nail corners without pain to palpation, but with regrowth of nail borders. The assessment was healed post-surgical right and left great toenail borders. During the Veteran's February 2011 hearing, he indicated that he was a full time student and that he was doing an internship. After his surgeries, he had open sores which could cause infection, and he had to soak his toes daily to make sure they were healing right. He would also have to keep them clean and dry. Then, he could not wear closed-toe shoes for the first month. On VA podiatry evaluation in February 2011, the Veteran's medial right and left great toenail borders had slight callus buildup without signs of regrowth. The assessment was status post matrixectomies of the right and left great toenail medial borders without apparent regrowth. On VA examination in November 2011, the Veteran reported that his toes were not causing any problems such as pain, but that the medial border of the left great toenail seemed to be growing in again. On examination, the left great toenail medial border seemed to be recurring. There was no erythema, edema, or pain on palpation of either the right or the left great toenail at the medial border, and there was no callus formation bilaterally. Scarring was superficial and did not cause any limited or painful motion. The scarring was not unstable or painful. The examiner felt that the functional impairment from the ingrown toenail disorders would be mild to moderate when the toenails were actively flared and ingrown, but they were not ingrown currently. The Veteran indicated that the was a full time student. In his prior employment in construction, he would come home with his toes bleeding. Also, there was lots of pain when his feet were operated on. After having reviewed the evidence, the Board finds that a compensable rating is not warranted for either the right or the left ingrown toenail disability under Diagnostic Code 5284, as the Veteran's great toenail disorders are not the equivalent of a moderate foot injury. On each occasion when the nails were evaluated, there was no pain or other indication of impairment of function, except for the one time when the Veteran had matrixectomies that day. The findings have been essentially benign over the course of the claim. The examiner in November 2011 indicated that the impairment from the ingrown toenail disorders would be mild to moderate when the toenails were actively flared and ingrown, but this was just an estimation and the equivalent of a moderate foot injury is not shown during the rating period. Diagnostic Codes 7801 and 7802 cannot assist as the Veteran's scarring is not deep and does not cause limited motion and is not in an area exceeding 6 square inches. Diagnostic Code 7803 does not assist as unstable scarring is not shown, and Diagnostic Code 7804 does not assist as painful on examination scarring is not shown. Diagnostic Code 7805 does not assist as reflected by the application of Diagnostic Code 5284 discussed above. In reaching these decisions, the Board considered all applicable statutory and regulatory provisions to include 38 C.F.R. §§ 4.40, 4.45 as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional impairment attributable to pain, particularly in light of the fact that the appellant contends his disability is essentially manifested by pain. Additionally, 38 C.F.R. § 4.45 provides that consideration should also be given to weakened movement, excess fatigability and incoordination. None of these are shown/shown to be related to the Veteran's ingrown toenails. For these reasons, the Board cannot find that higher evaluations are warranted based on functional impairment due to pain. In sum, the preponderance of the evidence indicates that neither great toenail disorder warrants a compensable rating under the rating schedule for any part of the rating period. In assessing the severity of the Veteran's ingrown toenail disorders, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As for post-surgical status, the Veteran was advised during his hearing that he could apply for temporary total ratings based on convalescence, under 38 C.F.R. § 4.30, based on any periods of post-surgical convalescence, but apparently he has not done so. The Board has also considered whether the Veteran's disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the ingrown toenail disorders. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.") Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. Additionally, the Board has considered the holding of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that claims for higher evaluations also include a claim for a total rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service connected disability). The Board notes that the Veteran has not asserted, or does the evidence of record indicate, that he is unemployable because of his disability. Rather, the record reflects that the Veteran has worked in construction and been a full time student during the period under appeal. Since the Veteran has provided no indication that his service-connected disabilities prevent him from obtaining and/or maintaining employment, the Board finds that Rice is not applicable to the current appeal. There must be cogent evidence of unemployability in the record. See Rice, 22 Vet. App. 447, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). Therefore, the Board finds that the current decision need not consider whether the Veteran meets the criteria for entitlement to TDIU. The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Entitlement to service connection for bilateral hearing loss disability is denied. Entitlement to an initial compensable rating for ingrown toenail of the right great toe is denied. Entitlement to an initial compensable rating for ingrown toenail of the left great toe is denied. ____________________________________________ Michael Martin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs