Citation Nr: 1337923	
Decision Date: 11/19/13    Archive Date: 12/06/13

DOCKET NO.  09-11 231A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for hearing loss.

2.  Entitlement to a compensable evaluation for hammertoe of the right middle toe.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. L. Wallin, Counsel


INTRODUCTION

The Veteran served on active duty from January 1984 to January 1987.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a    January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

The Veteran presented testimony before the RO in February 2010 and the Board in October 2012.  The transcripts have been associated with the virtual record.   

The matter was previously before the Board in February 2013 and remanded for further development and adjudication.  The claims have been returned to the Board and are now ready for appellate disposition.

In October 2013, the RO awarded service connection for arthritis and torn ligament of the right knee, lumbar strain with closed fracture, and radiculopathy of the femoral and sciatic nerve.   As such, there no longer remain claims in controversy.

This appeal was processed using the Virtual VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.


FINDINGS OF FACT

1.  It is not shown that the Veteran has a disability manifested by bilateral hearing loss for VA compensation purposes.

2.  The service-connected hammer toe of the right middle toe has been productive of functional loss, to include permanent flexion contracture of the middle toe and pain with manual extension and callus formation due to rubbing from shoes.
CONCLUSIONS OF LAW

1.  The criteria for service connection for hearing loss have not been met.              38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013).

2.  The criteria for the assignment of a 10 percent evaluation, but not greater, for the service-connected hammer toe of the right middle toe have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, including Diagnostic Code 5276-5284 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Notice and Assistance

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473   (2006).

The RO provided the Veteran pre-adjudication notice by letter dated in October 2006. 

VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the RO and Board.  

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.  VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time.


II. Analysis

The Board has reviewed all the evidence in the Veteran's virtual record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  

Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).


A.  Service Connection 

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

For some 'chronic diseases,' such as other organic diseases of the nervous system (sensorineural hearing loss), presumptive service connection is available.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b).  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.  If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 C.F.R. § 3.307.  The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331   (Fed. Cir. 2013).

Impaired hearing will be considered a disability for VA purposes when the auditory thresholds in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) are 40 decibels or more; or when the thresholds for at least three of these frequencies 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 provisions of § 3.385, however, do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Although that regulation speaks in terms of service connection, it operates to establish when a measured hearing loss is (or, more accurately is not) a "disability" for which compensation may be paid, provided that other requirements for service connection are otherwise met under 38 U.S.C.A. §§ 1110, 1112 and 38 C.F.R. §§ 3.303, 3.307.  Hensley v. Brown, 5 Vet .App. 155 (1993). 

In this decision, the Board has considered all lay and medical evidence as it pertains to the issues.  38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a).  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 
2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment.  Caluza v. Brown, 7 Vet. App. 498 (1995). 

In statements and testimony before the Board, the Veteran reports that he has hearing loss as a result of his active military service.  Specifically, he contends that the claimed condition is the result of noise exposure while performing duties as a gunner in service.

The Veteran's DD-214 reveals he was awarded the rifle M16 marksman badge; however, his military occupational specialty was as a unit supply specialist.  The service treatment records reflect no histories, findings, or treatment suggestive of hearing loss.  The September 1983 enlistment examination contained auditory thresholds as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
0
5
LEFT
10
0
0
0
0



The November 1986 separation examination contained auditory thresholds as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
0
10
0
LEFT
5
0
15
15
10

The threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran actually has the disability for which service connection is sought (hearing loss).  In the absence of proof of such disability there is no valid claim for service connection.  See Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).

Post-service, the Veteran has not been diagnosed with bilateral hearing loss for VA compensation purposes.  38 C.F.R. § 3.385.  Notably, the Veteran was afforded a VA examination in December 1997.   Auditory thresholds were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
5
5
0
0
10
LEFT
0
0
0
0
0

Speech recognition, performed with the Maryland CNC word list, was 96 percent bilaterally.  The Veteran was diagnosed with normal hearing bilaterally.

The Veteran was afforded an additional VA examination in March 2010.   Auditory thresholds were as follows: 




HERTZ



500
1000
2000
3000
4000
RIGHT
15
15
10
5
5
LEFT
10
10
15
10
15

Speech recognition, performed with the Maryland CNC word list, was again 96 percent bilaterally.  The examiner reviewed the claims folder and noted the frequency shift during service from enlistment to separation examination in the left ear at 2000 and 3000 Hertz; however, the examiner found that both examinations revealed normal hearing.  The examiner further indicated that no hearing loss was found in either ear at any frequency upon current examination and thus, there was no need for an opinion as to whether the Veteran's current hearing loss was due to noise exposure in service.  

As these examinations found no hearing loss and VA outpatient treatment records dated after the examination also do not show hearing loss, the Board must find that such disability is not shown.  Because the Veteran has not shown he now has, or during the pendency of this claim has had, hearing loss, he has not presented a valid claim of service connection for such disability.  See 38 U.S.C.A. § 1131; See Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, his appeal in this matter must be denied. 


B. Increased Rating 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability.  38 C.F.R. § 4.2.  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating.  38 C.F.R. § 4.7.  

When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity.  38 C.F.R. § 4.10.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability.  Schafrath, 1 Vet. App. at 594.  

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  

The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

The Court has held that functional loss, supported by adequate pathology and evidenced by visible behavior of the veteran undertaking the motion, is recognized as resulting in disability.  DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45.  

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40.

The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement.  38 C.F.R. § 4.45.

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  

To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).

Historically, service connection was awarded for hammer toe of the right middle toe in a February 1998 rating decision.  An initial noncompensable evaluation was made effective from September 1997.  The noncompensable rating remains in effect to this date.

The Veteran's hammer toe has been assigned a noncompensable rating for single hammer toes.  38 C.F.R. § 4.71a, Diagnostic Code 5282.  A 10 percent rating is assigned for all toes, unilateral without claw foot.  Id.  

Having carefully considered all the evidence of record in light of the pertinent law and regulations, and affording the Veteran all reasonable doubt, the Board finds that a 10 percent rating, and no higher, is warranted under the rating criteria based on objective findings of the right middle toe being in a permanently flexed position with no range of motion and pain with attempts at manual extension of the toe.  38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5282.  

The Board is aware that there has been no evidence of all toes on the right foot being hammer toe without clawfoot during VA examinations in 2006, 2010, and 2013 to warrant a 10 percent rating under the applicable rating criteria; however, given the pertinent findings delineated below, the Board finds that such rating is warranted based on findings of functional loss.  38 C.F.R. §§ 4.40, 4.45.

Notably, VA outpatient treatment records dated in December 2006 contain complaints of chronic right foot pain.  In July 2007, the Veteran had extreme flexure contracture of the right third toe.  In September 2007, the Veteran had severe hammer toe of the right third toe with a dorsal corn.  

During VA examination in December 2006, the Veteran complained of right foot pain two to three times per week.  The Veteran walked with a limp.  The right third toe had hyperextension of the metatarsophalangeal joint with flexion of the toe's proximal joint.  He had a callus on the distal interphalangeal joint, dorsal aspect.  The third toe was tender to touch.

On VA examination in March 2010, the Veteran had hammertoe present on the right third toe, with calluses present on the right foot over the great toe interphalangeal joint on the medial portion, the proximal interphalangeal joints of the second and third toes, and the fifth metatarsophalangeal joint on the lateral portion.  They were all tender.   

The June 2013 VA examiner found hammer toe of the right middle toe.  The toe was in a flexed position and unable to extend at will on its own.  The middle toe was considered to be in a permanently flexed position with a callus on the superior aspect overlying the metatarsophalangeal joint due to rubbing on shoes.  There was no range of motion for the toe so there was no weakness, fatigue, or incoordination.  The examiner indicated it would be painful for the Veteran or anyone to attempt to manually extend the toe. 
The Board considered other applicable criteria for rating the feet in order to assign a higher rating; however, the Board observes that no other code provisions can be applied for a higher rating based on the evidence of record.  There was no evidence of weak foot (Diagnostic Code 5277), claw foot (Diagnostic Code 5278), metatarsalgia (Diagnostic code 5279), hallux rigidus (Diagnostic Code 5281), malunion of or nonunion of the tarsal or metatarsal bones (Diagnostic Code 5283), or moderately severe foot injury (Diagnostic Code 5284).  Id.  There were findings of hallux valgus upon the most recent examination in June 2013; however, there was no indication it was related to the service-connected hammer toe. 

In sum, the evidence shows the Veteran's hammer toe of the right middle toe has been productive of functional loss, i.e. permanent flexion contracture of the middle toe and pain with manual extension and callus formation due to rubbing on shoes, which warrants a 10  percent rating.  Thus, the disability picture more nearly approximates the criteria for a 10 percent rating and no higher.  38 C.F.R. § 4.7.

The Board has noted the Veteran's complaints of pain experienced in his right foot and thus, considered functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995).  The increased rating was based on functional loss due to loss of range of motion in the right middle toe and complaints of pain.  There was no incoordination, weakness, or fatigue as there was permanent flexion contracture.   "Staged" ratings are not warranted for any period of the appeal.  38 C.F.R. § 4.71a; see Hart, supra.  Should the Veteran's disability picture change in the future, he may be assigned a higher rating.  See 38 C.F.R. § 4.1.  

Finally, the Board has considered whether extraschedular consideration is warranted.  The symptoms and resulting impairment demonstrated with regard to the hammer toe of right middle toe falls within the schedular criteria.  The rating criteria contemplate a higher rating, which has been awarded in the instant decision.   See Diagnostic Codes 5276-5284.  The effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule.  The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).

A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  The evidence of record shows the hammer toe of the right middle toe does not impact the Veteran's ability to work.  See June 2013 VA examination report.  Previously, the Veteran informed the March 2010 VA examiner that he missed six months of work secondary to his back and knee condition.  He has not made any assertions of unemployability during the appeal period with respect to his hammer toe disability.  The Board notes the RO separately considered and denied TDIU (not in connection with the current appeal) in November 2013; the Veteran to date has not appealed the decision.  Hence, further consideration of TDIU is not warranted. 


ORDER

Entitlement to service connection for hearing loss is denied.

Entitlement to a 10 percent evaluation for hammertoe of the right middle toe is granted subject to the controlling regulations governing monetary awards.


____________________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs