Citation Nr: 1333209 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 11-15 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 10 percent for residuals of an open comminuted fracture, left first metatarsal (foot disability). 2. Entitlement to an initial compensable rating for bilateral hearing loss. 3. Entitlement to an earlier effective date for the grant of a 10 percent rating for residuals of an open comminuted fracture, left first metatarsal (foot disability). REPRESENTATION Appellant represented by: Alpha Veterans Disabilities Advocates WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1979 to April 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which assigned a 10 percent rating increase for the foot disability effective as of August 11, 2009, granted service connection for hearing loss and assigned a non-compensable initial rating. In June 2011, the Veteran submitted a substantive appeal in which he requested a Board hearing at his local VA office. However, in July 2011, he submitted a second substantive appeal in which he withdrew his request for a Board hearing. As such, no hearing was necessary and the Board may proceed with adjudication. See 38 C.F.R. § 18.9 (2013). In addition, the Decision Review Officer (DRO) held a hearing with the Veteran in January 2012. In his Notice of Disagreement (NOD) from March 2010, the Veteran asserted that he should have an earlier effective date for the 10 percent rating assigned for his foot disability. The RO, or Agency of Original Jurisdiction (AOJ), did not address or decide this issue in any subsequent Statements of the Case (SOC). Therefore, the issue is remanded. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Although the Veteran did not expressly disagree with the rating percentage assigned for his foot disorder in the NOD, the RO treated the appeal as such; thus, such issue is deemed to be in appellate status. See Percy v. Shinseki, 23 Vet.App. 37 (2009). The issue of an earlier effective date for the 10 percent rating assigned to the foot disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran has pain from use of his foot despite wearing special shoes or orthotics. There is some loss of function during flare-ups, and slight prominence to the proximal end of the fifth metatarsal. 2. Throughout the rating period on appeal, the Veteran has had no more than Level II hearing impairment in his right ear and Level I in his left ear throughout the course of the appeal, and there is no indication that any functional effects due to such disability resulted in an exceptional or unusual disability picture to warrant referral for extra-schedular consideration. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to a rating higher than 10 percent for a foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5283 (2013). 2. The criteria to establish entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85-4.86, Diagnostic Code (DC) 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2009, the Veteran sought an increased rating for his foot disability, asserting that the condition had worsened, and service connection for hearing loss. The RO assigned a 10 percent rating for the foot disability and granted service connection with a non-compensable rating for hearing loss. I. Procedural Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). In September 2009, the RO sent a letter to the Veteran providing him notice, which satisfied the requirements of the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b). This letter was sent prior to initial adjudication of his claims for increased rating and service connection. The Veteran was informed of what evidence and information he needed to substantiate his claims, which VA would seek to obtain, which he could provide, and how ratings and effective dates would be determined, pursuant to Dingess/Hartman. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. The Veteran was afforded VA examinations in September 2009 and February 2012 to evaluate his foot disability and hearing loss. These examinations address the pertinent rating criteria and there is no argument or indication that they are inadequate. The Veteran had an opportunity to submit additional evidence and provided statements in support of his claim. The Board has carefully reviewed the record and determines there is no available, pertinent outstanding evidence. As VA satisfied its duties to notify and assist the Veteran, there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and the Veteran will not be prejudiced as a result of the Board's adjudication of his claims. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A. Foot Disability On appeal, the Veteran asserts that his foot disability is worse than that considered by the 10 percent disability rating assigned by the RO. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's right foot disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5283 as a disability from malunion of, or nonunion of the tarsal, or metatarsal bones. Under DC 5283, a 10 percent disability rating is warranted for a moderate condition, a 20 percent disability rating is warranted for a moderately severe condition, and a 30 percent disability rating is warranted for a severe condition. A note to DC 5283 provides that a 40 percent disability rating will be assigned for actual loss of use of the foot. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. VA should obtain examinations in which the examiner determined if the disability was manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups and whether these symptoms affected range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Board finds that the Veteran's foot disability does not warrant a rating in excess of the currently assigned 10 percent rating for a moderate condition for any portion of the rating period on appeal. During the RO hearing and VA examinations, the Veteran reported having pain after standing more than 20 or 30 minutes, walking more than 100 feet, and climbing stairs or ladders. After such exertion he would experience a flare-up with pain of 6/7 out of 10 in intensity. He stated that he could not run or play basketball without experiencing pain. He also mentioned that he had tried different shoes and inserts but they did not relieve the pain, and he had to wear his shoe tied loosely to avoid discomfort. He is competent to report pain and other observable symptoms of his foot disability and the Board finds him credible as his symptoms are consistent with the medical findings. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). During the September 2009 examination, the examiner noted normal gait. There were no deformities, and no malunion of the foot. The Veteran denied weakness or stiffness but reported flare-ups in pain. The examiner found slight prominence to the proximal end of the fifth metatarsal, with tenderness to palpation. However, the Veteran had normal range of motion even after repeated activity and pain generally did not affect functionality, but flare-ups could affect function and fatigability. The February 2012 examiner noted pain on palpitation. Moreover, imaging revealed no abnormalities in the bones or soft tissue. The remainder of findings were similar to the September 2009 examination. Again, the evidence shows that the use of the foot is compromised, as the Veteran has pain that is not relieved by special footwear. He also has flare-ups in pain when standing for longer than 20 minutes, climbing stairs, or doing exercise. He also has slight prominence to the proximal end of the fifth metatarsal. Such symptoms are found to be contemplated by the 10 percent evaluation currently assigned for moderate disability. Moreover, such rating considers additional functional limitation due to factors such as pain and weakness- however, the objective findings indicate that there is no further loss of motion with repetitive movement. The Veteran's foot disability does not warrant a rating in excess of 10 percent for a moderately severe foot disorder because his symptoms are limited to pain and some loss of function. Specifically, for a 20 or 30 percent rating under DC 5283, the evidence would need to show moderately severe or severe foot conditions caused by malunion or non-union of the metatarsal bone. Although the Veteran has a residual fracture of the metatarsal bone, the VA examiners found no malunion or abnormalities with his bones. Moreover, the Veteran's foot condition would not merit a higher rating under another, analogous diagnostic code. To receive a rating of 20 percent or higher under diagnostic codes 5276, 5278, and 5284, his symptoms would need to manifest to a moderately severe or severe degree, including symptoms of marked deformity, severe spasms, hammer toes, or limited flexion, none of which have been demonstrated here. Furthermore, the Veteran does not have a diagnosis of pes cavus or flatfoot, which are generally required by these criteria. See 38 C.F.R. § 4.71a, DC 5276 and 5278. In conclusion, the Veteran's overall disability picture most closely approximates the 10 percent rating assigned for his foot disability. See 38 C.F.R. § 4.71a, DC 5283. Additionally, the Board finds that the Veteran has had similar symptoms associated with his foot throughout the appeal and since the time of his claim for an increased rating, and staged ratings are not necessary. See Hart, 21 Vet. App. at 509-10. All potentially applicable diagnostic codes have been considered, and there is no basis upon which to assign an evaluation in excess of the rating assigned herein. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). B. Hearing Loss Disability In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.87. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. Further, all available tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85 and 4.86. First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. The Veteran's hearing loss disability does not warrant a compensable rating. During the VA examination in September 2009, the four-frequency pure tone average for the Veteran's right ear was 41 decibels, while the average for the left ear was 39 decibels. The speech recognition scores using the Maryland CNC test were 90 percent for the right ear and 94 percent for the left ear. Additionally, during the February 2012 VA examination, the four-frequency pure tone average for both the Veteran's ears was 35 decibels. The speech recognition scores were 98 percent for the right ear and 100 percent for the left ear. When applied to Table VI, the Veteran's right ear scores from September 2009 of 41 decibels and 90 percent result in a Level II designation of impairment. His left ear scores from September 2009 of 39 decibels and 94 percent result in a Level I designation of impairment. Further, the Veteran's scores from February 2012 of 35 decibels and 98 and 100 percent result in a Level I designation of impairment. As the September 2009 results show more severe hearing loss, those will be used in table VII. The Veteran's right ear Level II designation combined with his left ear Level I designation results in a zero percent disability rating. The Board has considered the Veteran's lay statements regarding his hearing loss, including those made during the January 2012 DRO hearing and VA examinations. In such statements, he reported that his hearing loss had gotten worse and that his hearing aids were not working well enough to correct the problem. The Veteran is competent to report these symptoms of his disability because they are observable by his own senses. See Jandreau 492 F.3d at 1376-77; Barr, 21 Vet. App. at 307-08. There is also no reason to find him not credible. Nevertheless, VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. As such, the medical evidence and test results are more probative and outweigh the Veteran's subjective reports of a more severe degree of disability, as they directly address the rating criteria for the Veteran's hearing loss. Further, although the Veteran reported that his hearing was worsening, the results of the audiological tests from 2009 and 2012 show a similar level of disability. Therefore, staged ratings are not appropriate, as the manifestations of the disability have remained relatively stable throughout the course of the appeal. See Fenderson, 12 Vet. App. at 126-127. C. Extraschedular Considerations The Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's foot disability and hearing loss symptoms are fully contemplated by the schedular rating criteria. Specifically for the foot disability, the rating criteria and case law take into account range of motion, functional loss, and most pertinent here, pain. Additionally, he has normal sensorineural hearing loss and does not have an unusual or exceptional disability picture. Therefore, the rating schedule is adequate to evaluate his disability pictures. Moreover, there are no related factors such as frequent periods of hospitalization or marked interference with employment, as he plans to continue to work. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. The Veteran has not directly made or inferred a claim for a total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities. See Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (Fed. Cir. 2009); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Instead the evidence indicates that he has been employed in the past and plans to continue working after completing school. Therefore, consideration of TDIU is not warranted in this case. The preponderance of the evidence is against a compensable rating for bilateral hearing loss and a rating in excess of 10 percent for his foot disability. As such, the benefit of the doubt doctrine does not apply, and the Veteran's claims for higher ratings must be denied. 38 C.F.R. § 4.3. ORDER A disability rating in excess of 10 percent for residuals of an open comminuted fracture, left first metatarsal is denied. An initial compensable rating for bilateral hearing loss is denied. REMAND As noted above, the AOJ issued a rating decision in January 2010, which assigned a 10 percent rating for the Veteran's foot disability effective as of August 11, 2009. In March 2010, the Veteran sent an NOD arguing that the 10 percent rating should be effective at the time of his original claim for service connection in 2005. In the April 2011 SOC and the April 2012 Supplemental SOC, the AOJ addressed the other issues on appeal but did not address the issue of earlier effective date for the 10 percent award for the foot disability. As no further action has been taken in response to the NOD, the Board has no discretion, and this issue must be remanded for the issuance of an SOC. See Manlincon, 12 Vet. App. at 240. However, these issues will be returned to the Board only if the Veteran then files a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Provide the Veteran with a statement of the case as to the issue of an earlier effective date for the 10 percent award for his foot disability. All evidence of record should be considered. See 38 C.F.R. §§ 19.29-19.30; see also Manlincon, 12 Vet. App. at 240. Further, advise the Veteran that a substantive appeal has not been received concerning this issue, and of the requirements for submitting an adequate and timely substantive appeal, as provided in 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). Thereafter, the case should be returned to the Board only if a timely substantive appeal is filed, and subject to current appellate procedures. See Smallwood, 10 Vet. App. at 97. The Board intimates no opinion as to the outcome of this case. The purpose of this REMAND is to ensure compliance with due process considerations. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs