Citation Nr: 1643892 Decision Date: 11/17/16 Archive Date: 12/01/16 DOCKET NO. 12-14 318A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial compensable disability rating prior to January 5, 2016 and a disability rating in excess of 10 percent as of January 5, 2016 for service-connected bilateral hearing loss. 2. Entitlement to an initial compensable disability rating for right lower leg shrapnel scar. 3. Entitlement to an initial compensable disability rating for left great toe shrapnel scar. REPRESENTATION Appellant represented by: Noncommissioned Officers Association ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to November 1945. He was a Prisoner of War and he was awarded the Purple Heart. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in July 2015 for further development. Thereafter, the RO continued the denial of each claim as reflected in the March 2016 supplemental statement of the case (SSOC) and returned these matters to the Board for further appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's service-connected bilateral hearing loss was manifested by no more than Level III hearing acuity in both ears prior to January 5, 2016. 2. The preponderance of the evidence shows that the Veteran's service-connected bilateral hearing loss was manifested by Level IV hearing acuity in the right ear and Level III hearing acuity in the left ear as of January 5, 2016. 3. The preponderance of the evidence shows that the Veteran's right lower leg shrapnel scar is linear, not deep, less than 6 square inches (39 square centimeters), not unstable, not tender or painful, does not result in any other disabling effects, and residuals of the shrapnel injury to the right lower leg does not result in any muscle, neurological, or musculoskeletal disability. 4. The preponderance of the evidence shows that the Veteran's left great toe shrapnel scar is linear, not deep, less than 6 square inches (39 square centimeters), not unstable, not tender or painful, does not result in any other disabling effects, and residuals of the shrapnel injury to the left great toe does not result in any muscle, neurological, or musculoskeletal disability. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating prior to January 5, 2016 and a disability rating in excess of 10 percent as of January 5, 2016 for service-connected bilateral hearing loss have not been met or approximated. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.85, 4.86, Diagnostic Code 6100 (2015). 2. The criteria for an initial compensable disability rating for service-connected right lower leg shrapnel scar have not been met or approximated for the entire appeals period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2015). 3. The criteria for an initial compensable disability rating for service-connected left great toe shrapnel scar have not been met or approximated for the entire appeals period. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 44.118, Diagnostic Codes 7800-7805 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of 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. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran is appealing the initial disability rating assigned by the RO in November 2011 for his service-connected bilateral hearing loss, right lower leg shrapnel scar, and left great toe shrapnel scar. The November 2011 rating decision granted the Veteran's service connection claims and therefore, such claims are now substantiated. His filing of a notice of disagreement as to the initial ratings assigned in the November 2011 decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). 38 C.F.R. § 3.159(b)(3). Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. The claims file contains the Veteran's service treatment records, private treatment records, VA treatment records, VA examinations dated in July 2011, January 2016, and February 2016, and lay statements from the Veteran. The VA examination reports dated in July 2011 and January 2016 reflect that the examiners reviewed the claims file, obtained an oral history from the Veteran of his hearing loss symptoms, and evaluated the Veteran. The examiners documented the results of the examinations in detail and described the functional effects caused by the hearing disability in their reports. See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007). Based on the foregoing, the Board concludes that the July 2011 and January 2016 VA examinations are adequate for rating purposes. The July 2011 and February 2011VA examinations reports for residuals of shrapnel to the right lower leg and left great toe reflect that the examiners reviewed the claims file, obtained an oral history from the Veteran of his symptoms, and evaluated the Veteran. The examiners documented the results of the examinations in detail. Based on the foregoing, the Board concludes that the July 2011 and February 2016 VA examinations are adequate for rating purposes. These issues were remanded in July 2015 to obtain any outstanding treatment records and to provide the Veteran with additional VA examinations. The Veteran was sent a letter in November 2015 asking him to provide the RO with all VA and private providers for his claims on appeal and to complete the enclosed medical release form. The Veteran did not respond to the letter. VA examination reports dated in January 2016 and in February 2016 were uploaded into the Veteran's electronic claims file and documents the current severity of the Veteran's bilateral hearing loss and residuals of shrapnel to the right lower leg and left great toe. The VA examinations addressed the issues raised in the July 2015 remand. Accordingly, there has been substantial compliance with the July 2015 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified, and the record does not otherwise indicate, any other existing, pertinent evidence that has not been obtained with respect to the issues on appeal. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Criteria and Analysis The Veteran contends that he is entitled to a higher disability rating for his service-connected bilateral hearing loss and scars of the right lower leg and left great toe. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). Where there is a question as to which of two evaluations shall be applied, 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 (2015). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2015). When the evidence is in relative equipoise, the Veteran is accorded the benefit of the doubt. 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hearing Loss Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which in turn, are measured by puretone audiometric tests in the frequencies of 1000, 2000, 3000 and 4000 cycles per second). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 (2015) establish eleven auditory acuity levels from I to XI. If hearing loss is service-connected for only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman numeral designation for hearing impairment of I. 38 C.F.R. § 4.85(f). Tables VI and VII as set forth in section 4.85(h) are used to calculate the rating to be assigned. In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria indicate that, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Each ear is evaluated separately. 38 C.F.R. § 4.86(a) (2015). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. The numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). During the pendency of this appeal, the RO increased the disability rating assigned to the Veteran's hearing loss from 0 percent to 10 percent under Diagnostic Code 6100, effective January 5, 2015. The Board will therefore consider whether the Veteran is entitled to a higher disability rating under both stages of this appeal, as well as, consider whether additional staging is appropriate. For reasons discussed in more detail below, the Board finds that the stages created by the RO are appropriate in light of the competent medical evidence of record and that there is no competent evidence that the Veteran's service-connected disability underwent additional increases in severity during this appeal sufficient to warrant a higher evaluation at any time during the appeal period. Prior to January 5, 2016 The Veteran underwent a VA audiology examination in July 2011. The VA examination report shows the Veteran had 76 percent speech recognition in his right ear. The Veteran exhibited puretone thresholds in the right ear of 45 dB at 1000 Hz, 35 dB at 2000 Hz, 45 dB at 3000 Hz and 50 dB at 4000 Hz. The average decibel loss for the right ear was 44 dB. The VA examination showed the Veteran had 76 percent speech recognition in his left ear. The Veteran exhibited puretone thresholds in the left ear of 40 dB at 1000 Hz, 35 dB at 2000 Hz, 55 dB at 3000 Hz and 55 dB at 4000 Hz. The average decibel loss for the left ear was 46 dB. The evidence shows that the Veteran did not meet the exception requirements for hearing impairment under 38 C.F.R. § 4.86. The examiner also did not certify that the use of speech discrimination test was not appropriate. Therefore, the numerical hearing impairment is determined only by Table VI. The hearing acuity in both ears is at Level III. Diagnostic Code 6100, Table VII provides a 0 percent disability rating for the hearing impairment demonstrated by the Veteran at the July 2011 VA examination. As of January 5, 2016 The Veteran was provided with another VA examination in January 2016. The evaluation shows puretone thresholds in the right ear of 50 dB at 1000 Hz, 40 dB at 2000 Hz, 55 dB at 3000 Hz, and 60 dB at 4000 Hz. The average decibel loss for the right ear was 51 dB. Speech recognition in the right ear was 76 percent. The Veteran exhibited puretone thresholds in the left ear of 40 dB at 1000 Hz, 35 dB at 2000 Hz, 60 dB at 3000 Hz, and 60 dB at 4000 Hz. The average decibel loss for the left ear was 49 dB. Speech recognition in the left ear was 80 percent. Then January 2016 VA examination reveals that the Veteran did not meet the exception requirements for hearing impairment under 38 C.F.R. § 4.86. The examiner also did not certify that the use of speech discrimination test was not appropriate. Therefore, the numerical hearing impairment is determined only by Table VI. The Veteran's hearing acuity in the right ear is assigned to level IV and the hearing acuity in the left ear is assigned to Level III. Diagnostic Code 6100, Table VII provides a 10 percent disability rating for the hearing impairment demonstrated by the Veteran in January 2016. In conclusion, the benefit of the doubt is to be resolved in the Veteran's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, the Board finds that the preponderance of the evidence is against the claim and an assignment of an initial disability rating in excess of 0 percent prior to January 5, 2016 and in excess of 10 percent as of January 5, 2016 for bilateral hearing loss on a schedular basis is not warranted. See 38 C.F.R. § 3.102 (2015). According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2015). An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for bilateral hearing loss is inadequate. A comparison between the level of severity and symptomatology of the Veteran's bilateral hearing loss with the established criteria found in the rating schedule for hearing impairment shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Veteran indicated in the July 2011 VA examination that he experiences difficulty hearing in his daily life. He reporting having trouble with the clarity of words and had difficulty understanding speech in background noise. The Veteran reported in the January 2016 examination that he experienced difficulty hearing in the presence of back ground noise. Difficulty hearing is precisely what is contemplated in the schedular criteria. Furthermore, the evidence shows that the Veteran's service-connected bilateral hearing loss does not cause marked interference with employment, necessitated any frequent periods of hospitalization, or has otherwise rendered impracticable the application of the regular schedular standards. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. Finally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating based on unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for an increased rating. In this particular case at hand, however, the Veteran has not argued, and the record does not otherwise reflect, that his bilateral hearing loss disability results in him being unable to obtain or maintain substantially gainful employment. Accordingly, the Board concludes that a derivative claim for a TDIU has not been raised. See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011). Right Lower Leg Shrapnel Scar The Veteran's right lower leg shrapnel scar is currently rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2015). Under this diagnostic code, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent disability rating is warranted for three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). A VA examination dated in July 2011 shows that the Veteran had a small transverse scar measuring 2.5 cm by 0.3 cm over the medial aspect of the distal part of the right lower leg above the ankle related to an old shrapnel injury during active military service. The scar was not painful or tender. The examination revealed that there was no evidence that the scar was elevated, depressed, indurated, or inflexible. There were no signs of inflammation, edema, or keloid changes. The scar was not disfiguring. There was no obvious atrophy or wasting of the muscles around the scar. Muscle power was normal. The right ankle joint movements were within normal range with no evidence of pain. Repetitive movements were normal and not painful. There was no local tenderness noted. The examinations also showed no signs of adhesions, cellulitis, or chronic ulcers. The Veteran was provided with another VA examination in February 2016 that reveals the Veteran reported no complaints of his scar. The examiner observed that the Veteran had a linear scar located at the medial lower right leg measuring 3.2 cm long by 0.3 cm wide. The scar was well healed, non tender, and non keloidal. The scar was not painful or unstable. The scar did not interfere with the movement of the right lower extremity and did not cause any neurovascular compromise. The examiner determined that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms (such as muscle or nerve damage) associated with the scar. A review of the lay statements provided by the Veteran does not indicate that he contends that the scar is painful. Based on the medical and lay evidence discussed above, the Board finds that the preponderance of the evidence shows that the Veteran's right lower leg shrapnel scar is not unstable or painful. Accordingly, entitlement to a compensable disability rating based under Diagnostic Code 7804 for right lower leg shrapnel scar is not warranted. With respect to whether the scar warrants a compensable disability rating under an alternative diagnostic code, a 10 percent rating is warranted for scars, other than head, face, or neck, that are deep and nonlinear, when the area or areas encompass at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters) under Diagnostic Code 7801. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2015). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Note (1) (2015). Diagnostic Code 7802 provides that scars, other than the head, face or neck, that are superficial and nonlinear are assigned a 10 percent rating when the area is 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2015). Diagnostic Code 7805 provides that any disabling effect(s) that are not considered in a rating provided under diagnostic codes 7800-04 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2015). The preponderance of the evidence shows that the Veteran's right lower leg shrapnel scar is linear and not deep. The scar is less than 6 square inches (39 square centimeters). Furthermore, the scar did not have any disabling effects. See VA examination dated in July 2011 and February 2016. Based on the foregoing, the Board concludes that the Veteran is not entitled to a higher disability rating under Diagnostic Codes 7801-02 and 7805. The Board has also considered whether the Veteran is entitled to a compensable disability rating under other alternative diagnostic codes for any other residuals caused by shrapnel to the right lower extremity to include nerve damage, muscle damage, and/or musculoskeletal disability. However, as noted above, the July 2011 VA examination reveals that the examiner did not observe any atrophy or wasting of the muscles around the scar. Muscle power was normal. The right ankle joint movements were within normal range with no evidence of pain to include on repetitive motion. There was no local tenderness noted. There was also no evidence of adhesions, cellulitis, or chronic ulcers. Sensations including monofilament touch sensations were slightly diminished over both feet, especially over the toes. Otherwise, the evaluation of the nervous system was normal. The examiner diagnosed the Veteran with mild peripheral neuritis involving both feet related to cold injury. The February 2016 VA examiner determined that there was no muscle damage from the underlying injury because there was no wasting or atrophy in the right lower calf. There was also no evidence of post-traumatic osteoarthritis from the underlying injury to the right lower leg, because there is no joint in the area of the right lower leg injury. She further concluded that the degenerative changes in the right knee joint and right ankle joint are age-related. Thus, the Board concludes that the Veteran is not entitled to a compensable disability rating for any other residuals from shrapnel to the right lower leg The Board has considered whether staged ratings are appropriate in this case. The evidence of record shows right lower leg shrapnel scar has not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. In conclusion, the Board notes that the benefit of the doubt is to be resolved in the veteran's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, the Board finds that the preponderance of the evidence is against the claim and an assignment of a compensable disability rating for service-connected right lower leg shrapnel scar is not warranted. With respect to the whether the claim should be referred for extraschedular consideration, the evidence does not show such an exceptional disability picture that the available schedular evaluation for service-connected right lower leg shrapnel scar is inadequate. A comparison between the level of severity and symptomatology of the Veteran's scar with the established criteria found in the rating schedule for scars show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The evidence does not indicate that scar of the right lower leg has caused marked interference with employment that is not already contemplated in the rating criteria, necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. Finally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating based on unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his right lower leg shrapnel scar results in him being unable to obtain or maintain substantially gainful employment. Accordingly, the Board concludes that a derivative claim for a TDIU has not been raised. See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011). Left Great Toe Shrapnel Scar The Veteran's left great toe shrapnel scar is currently rated as noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7804 (2015). Under this diagnostic code, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent disability rating is warranted for three or four scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). A VA examination dated in July 2011 shows that the Veteran had a well-healed scar measuring 2.5 cm by 0.1 cm over the medial aspect of the left great toe related to an old shrapnel injury during active military service. The scar was slightly pale when compared to the surrounding skin. The scar was not painful or tender. The examination revealed that there was no evidence that the scar was elevated, depressed, indurated, or inflexible. There were no signs of inflammation, edema, or keloid changes. The scar was not disfiguring. There was no breaking down of the scar. There was no obvious swelling, tenderness, redness, warmth, or crepitus of the small joints of the left foot including the great toe. Dorsiflexion of the left great toe was 20 degrees and plantar flexion was to 15 degrees with no evidence of pain. Repetitive movements were the same without further limitation or pain. The peripheral pulses were normal in the left foot. The examiner observed that there was no evidence of cellulitis, chronic ulcers, or gangrene. He was able to stand and walk on his heels and toes. Manual manipulation of the left foot was not painful. His gait was normal. There was no obvious atrophy or wasting of the muscles. Muscle power was normal. The Veteran underwent another VA examination in February 2016 that reveals the Veteran reported no complaints of his scar. The examiner observed that the Veteran had a single linear scar located at the inner border of the left great toe measuring 3 cm long by 0.3 cm wide. The scar was faint, well healed, non tender, and non keloidal. The scar was not painful or unstable. The scar did not interfere with the movement of the left lower extremity and did not cause any neurovascular compromise. The examiner determined that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms (such as muscle or nerve damage) associated with the scar. A review of the lay statements provided by the Veteran does not show that he contends that the scar is painful. Based on the evidence of record, the most pertinent of which was discussed above, the Board finds that the preponderance of the evidence shows that the Veteran's left great toe shrapnel scar is not unstable or painful. Thus, entitlement to a compensable disability rating based under Diagnostic Code 7804 for service-connected left great toe shrapnel scar is not warranted. Regarding the issue of whether the scar warrants a compensable disability rating under an alternative diagnostic code, a 10 percent rating is warranted for scars, other than head, face, or neck, that are deep and nonlinear, when the area or areas encompass at least 6 square inches (39 square centimeters), but less than 12 square inches (77 square centimeters) under Diagnostic Code 7801. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2015). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Note (1) (2015). Diagnostic Code 7802 provides that scars, other than the head, face or neck, that are superficial and nonlinear are assigned a 10 percent rating when the area is 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2015). Diagnostic Code 7805 provides that any disabling effect(s) that are not considered in a rating provided under diagnostic codes 7800-04 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2015). The preponderance of the evidence shows that the Veteran's left great toe shrapnel scar is linear and not deep. The scar is less than 6 square inches (39 square centimeters). Furthermore, the scar does not have any disabling effects. See VA examination dated in July 2011 and February 2016. Based on the foregoing, the Board concludes that the Veteran is not entitled to a higher disability rating under Diagnostic Codes 7801-02 and 7805. The Board has also considered whether the Veteran is entitled to a compensable disability rating under other alternative diagnostic codes for any other residuals caused by shrapnel to the left great toe to include nerve damage, muscle damage, and/or musculoskeletal disability. However, as noted above, the July 2011 VA examination reveals that the examiner did not observe any atrophy or wasting of the muscles. Muscle power was normal. There was no obvious swelling, tenderness, redness, warmth, or crepitus of the small joints of the left foot including the great toe. There was also no evidence of cellulitis or chronic ulcers. Sensations including monofilament touch sensations were slightly diminished over both feet, especially over the toes. Otherwise, the evaluation of the nervous system was normal. The examiner diagnosed the Veteran with mild peripheral neuritis involving both feet related to cold injury of the feet. The February 2016 VA examiner determined that there was no muscle damage from the underlying injury because there was no wasting or atrophy in the left foot. The Veteran had normal strength in the left foot. There was also no evidence of post-traumatic osteoarthritis from the underlying injury to the left great toe, because there is no joint in the area of the left great toe injury. She further concluded that the degenerative changes in the left foot are age-related. Therefore, the Board concludes that the Veteran is not entitled to a compensable disability rating for any other residual from shrapnel to the left great toe. The Board has considered whether staged ratings are appropriate in this case. The evidence of record shows left great toe shrapnel scar has not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. In conclusion, the Board notes that the benefit of the doubt is to be resolved in the veteran's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, the Board finds that the preponderance of the evidence is against the claim and an assignment of a compensable disability rating for service-connected left great toe shrapnel scar is not warranted. With respect to the whether the claim should be referred for extraschedular consideration, the evidence does not show such an exceptional disability picture that the available schedular evaluation for service-connected left great toe shrapnel scar is inadequate. A comparison between the level of severity and symptomatology of the Veteran's scar with the established criteria found in the rating schedule for scars show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The evidence does not indicate that scar of the left great toe has caused marked interference with employment that is not already contemplated in the rating criteria, necessitated frequent periods of hospitalization or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. As a final point, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total disability rating based on unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for an increased rating. Here, the Veteran has not argued, and the record does not otherwise reflect, that his left great toe shrapnel scar results in him being unable to obtain or maintain substantially gainful employment. Accordingly, the Board concludes that a derivative claim for a TDIU has not been raised. See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial compensable disability rating prior to January 5, 2016 and a disability rating in excess of 10 percent as of January 5, 2016 for service-connected bilateral hearing loss is denied. Entitlement to an initial compensable disability rating for right lower leg shrapnel scar is denied. Entitlement to an initial compensable disability rating for left great toe shrapnel scar is denied. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs