Citation Nr: 1802752 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-24 666A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for cold injury residuals of the right foot from October 25, 2011 to March 21, 2017. 2. Entitlement to a disability rating in excess of 30 percent for cold injury residuals of the right foot since March 22, 2017. 3. Entitlement to an initial disability rating in excess of 10 percent for cold injury residuals of the left foot from October 25, 2011 to March 21, 2017. 4. Entitlement to a disability rating in excess of 30 percent for cold injury residuals of the left foot since March 22, 2017. 5. Entitlement to an initial compensable disability rating for bilateral hearing loss from October 25, 2011 to March 21, 2017. 6. Entitlement to a disability rating in excess of 20 percent for bilateral hearing loss since March 22, 2017. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1953 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. In July 2017, the Board remanded the case for further development. The Board ordered that the Veteran be offered VA examinations for his claimed conditions. Additionally, the Board ordered that the Veteran's VA treatment records be obtained and made part of his case file. The Board finds that there has been substantial compliance as per its directives. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDINGS OF FACT 1. From October 25, 2011 to March 21, 2017, the Veteran's cold injury residuals of the right foot manifested with arthralgia. 2. Since March 22, 2017, the Veteran's cold injury residuals of the right foot manifested with arthralgia, cold sensitivity, color changes, hyperhidrosis, numbness, locally impaired sensation, osteoarthritis, and nail abnormalities. 3. From October 25, 2011 to March 21, 2017, the Veteran's cold injury residuals of the left foot manifested with arthralgia. 4. Since March 22, 2017, the Veteran's cold injury residuals of the left foot manifested with arthralgia, cold sensitivity, color changes, hyperhidrosis, numbness, locally impaired sensation, osteoarthritis, and nail abnormalities. 5. From October 25, 2011 to March 21, 2017, the Veteran's bilateral hearing loss is manifested by no more than Level VII hearing acuity in the right ear and no more than Level I hearing acuity in the left ear, resulting in a noncompensable disability rating. 6. Since March 22, 2017, the Veteran's bilateral hearing loss is manifested by no more than Level VIII hearing acuity in the right ear and no more than Level II hearing acuity in the left ear, resulting in a disability rating of 20 percent, but not higher. CONCLUSIONS OF LAW 1. From October 25, 2011 to March 21, 2017, the criteria for a disability rating in excess of 10 percent for cold injury residuals of the right foot have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, DC 7122 (2017). 2. Since March 22, 2017, the criteria for a disability rating in excess of 30 percent for cold injury residuals of the right foot have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, DC 7122 (2017). 3. From October 25, 2011 to March 21, 2017, the criteria for a disability rating in excess of 10 percent for cold injury residuals of the left foot have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, DC 7122 (2017). 4. Since March 23, 2017, the criteria for a disability rating in excess of 30 percent for conld injury residuals of the left foot have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, DC 7122 (2017). 5. From October 25, 2011 to March 21, 2017, the criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C. § 1110, 1111, 5103, 5103A, 5107 (West 2012); §§ 3.102, 3.159, 3.303, 3.304 (2017). 6. Since March 21, 2017, the criteria for a disability rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1110, 1111, 5103, 5103A, 5107 (West 2012); §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2017). Separate Diagnostic Codes (DC) identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2017). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). However, the evaluation of painful motion as limited motion only applies when the limitation of motion is non-compensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2017); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. Cold Injury Residuals Cold injury residuals are rated using the criteria set forth in 38 C.F.R. § 4.104 (2017), Diagnostic Code (DC) 7122. A 10 percent rating is assigned for arthralgia or other pain, numbness, or cold sensitivity. A 20 percent rating is assigned for arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 30 percent rating is assigned for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 30 percent rating is the highest schedular rating provided for cold injury to an extremity. Notes appended to DC 7122 provide that each affected part, such as the hand, foot, ear, and nose should be evaluated separately and the ratings should be combined in accordance with 38 C.F.R. §§ 4.25 and 4.26 (2017). Amputations and complications such as carcinoma at the site of a cold injury scar, or peripheral neuropathy should be separately evaluated under other Diagnostic Codes. The Veteran's service-connected cold weather residuals of his right foot and his left foot are currently rated as 10 percent disabling from October 25, 2011 to March 21, 2017 and as 30 percent disabling since March 21, 2017 under DC 7122. Residuals of cold injury to the right foot and left foot from October 25, 2011 to March 21, 2017 In May 2013, the Veteran was afforded a VA examination for his bilateral foot disability. See May 2013 Compensation and Pension note. He was diagnosed with mild bilateral foot cold injury with residuals. The examination revealed that arthralgia bilaterally in the Veteran's feet. There was no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. Additionally, the Veteran's feet were not found to have color changes. Functionally, the Veteran's bilateral foot disability caused pain with difficulty in standing for long periods of time. Private treatment records reveal that the Veteran presented with sensitivity to cold and peripheral neuropathy in both of his feet as endorsed by Dr. Richter. See July 2012 Podiatry Note. In June 2014, the VA provided an addendum opinion to clarify conflicting medical evidence. The examiner confirmed that the Veteran presented with arthralgia in his feet bilaterally. Additionally, the examiner reviewed the treatment note by Dr. Richter which found that the Veteran had sensitivity to cold and neuropathy in both feet. Based on the physical examination that he performed, the examiner opined that peripheral neuropathy, cold sensitivity, and color changes were not present on the Veteran's feet. The Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran's bilateral foot disability from October 25, 2011 to March 21, 2017. The Veteran's symptoms included pain bilaterally. A higher evaluation of 20 percent is not warranted unless there is pain, numbness cold sensitivity, or arthralgia plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities (osteoporosis subarticular punched out lesions or osteoarthritis) of affected parts. Residuals of cold injury to the right foot and left foot since March 22, 2017 At a March 2017 hearing before the Board, the Veteran testified that his residuals from cold exposure to his feet had worsened bilaterally. See March 2017 Transcript. He testified that he has difficulty with walking due to pain and numbness. He stated that his toenails had become discolored and irregular. The Veteran also testified to increased sweating in his feet bilaterally. In August 2017, the Veteran was afforded a VA examination for his bilateral foot disability. See August 2017 Compensation and Pension. He was diagnosed with frostbite with residuals, moderate degenerative joint disease, hammer toes, pain and numbness, hyperhidrosis, and diffuse onychomycosis in his feet bilaterally. Additionally, the Veteran's feet were found to have color changes and locally impaired sensation bilaterally. There was evidence of osteoarthritis confirmed by x-ray. Functionally, the Veteran's bilateral foot disability caused moderate pain and numbness sensation to both feet. The Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran's bilateral foot disability since March 22, 2017 as this is the maximum compensable rating under the schedule. The Veteran's symptoms in his feet due to cold residuals included pain, cold sensitivity, and neuropathy with nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, and osteoarthritis bilaterally. In evaluating the Veteran's current level of disability, functional loss was considered. 38 C.F.R. §§ 4.40, 4.45 (2017). The medical evidence shows that the Veteran has, at different times, complained of pain, which he is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is also evidence that the Veteran could not stand for long periods of time due to pain. However, even after taking these statements and the current symptoms, the VA examiner found that the Veteran would not be better served by amputation of his feet and treatment records lack any opinion indicating that the Veteran would be equally well served by amputation of his feet. As such, the preponderance of the evidence is against a finding that a higher rating for the Veteran's residuals. 38 C.F.R. § 4.71a, Diagnostic Code 5167-5173 (2017). Additionally, the Board finds that the VA medical opinions regarding additional functional loss due to pain, weakness, fatigue, or other factors as per Deluca do not warrant a higher rating. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). For the entire period on appeal, the Board has also considered whether higher or separate Diagnostic Codes are applicable. The evidence of record indicates that the Veteran's service-connected disabilities are primarily manifested by pain, numbness, or cold sensitivity plus nail abnormalities, color changes, locally impaired sensation, and osteoarthritis. There is no medical or lay evidence of other symptoms that would not result in the pyramiding of other applicable Diagnostic Codes. The Board has considered whether higher ratings are available for amputations, scars, or other residuals of a cold injury that have not already been used to support his current 30 percent ratings. The Board finds that at no time during the pendency of this appeal has the Veteran's disabilities been shown to result in any amputations, scarring, or other previously mentioned conditions. A private treatment note found peripheral neuropathy in the Veteran's feet; however, VA examinations revealed no peripheral neuropathy. Additionally, a clarifying addendum opinion effectively ruled out peripheral neuropathy confirmed by direct physical examination. The Board finds that the Veteran's symptoms are clearly accounted for in the 30 ratings pursuant to DC 7122. Thus, other potentially related Diagnostic Codes are not for application. B. Bilateral Hearing Loss Evaluations of defective hearing range from zero to 100 percent. This is based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. To evaluate the degree of disability from service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII, Diagnostic Code 6100. Table VI in 38 C.F.R. § 4.85 is used to determine the numeric designation of hearing impairment based on the pure tone threshold average from the speech audiometry test and the results of the speech discrimination test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row corresponding to the percentage of discrimination and the horizontal column corresponding to the pure tone decibel loss. The provisions of 38 C.F.R. § 4.86 govern exceptional patterns of hearing impairment. Exceptional patterns of hearing loss include puretone thresholds 55 dB or above for all four of the specified frequencies, or where the threshold was 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz. If such exceptional patterns are shown, then hearing loss is evaluated under either Table VI or Table VIA, whichever results in a higher Roman numeral. Table VIA is based solely on puretone threshold average. In cases where the threshold was 30 dB or less at 1000 Hz and 70 dB or more at 2000 Hz, the Roman numeral generated from Table VI or VIA will then be elevated to the next higher Roman numeral. The percentage evaluation is derived from Table VII in 38 C.F.R. § 4.85 by intersecting the vertical column corresponding to the numeric designation for the ear having the better hearing acuity (as determined by Table VI) and the horizontal row corresponding to the numeric designation level for the ear having the poorer hearing acuity (as determined by Table VI). For example, if the better ear has a numeric designation Level of "V" and the poorer ear has a numeric designation Level of "VII," the percentage evaluation is 30 percent. The ratings for disability compensation for hearing loss are determined by the mechanical, meaning nondiscretionary, application of the above criteria. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The Veteran's service-connected bilateral hearing loss is currently rated as zero percent (noncompensable) under DC 6100 from October 25, 2011 to March 21, 2017 and as 20 percent disabling since March 21, 2017. Bilateral hearing loss from October 25, 2011 to March 21, 2017 The Veteran's audiology examinations reveal that he has not met the criteria necessary for a compensable rating under §4.85 from October 25, 2011 to March 21, 2017. VA records show the Veteran underwent audiometric testing for hearing loss in June 2013. See June 2013 Compensation and Pension Examination. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 65 65 70 80 75 LEFT 35 40 50 65 65 Speech audiometry revealed speech discrimination ability of 64 percent in the right ear and 96 percent in the left ear. Utilizing 38 C.F.R. § 4.85, Table VI, this corresponds to a hearing level of VII in the right ear and a hearing level of I in the left ear. The examiner diagnosed the Veteran with bilateral sensorimotor hearing loss in the (in the frequency range of 500-4000 Hz). She noted that the Veteran's hearing loss, specifically, the Veteran reported that he has overall hearing difficulty. Review of the Veteran's private treatment records indicate that he was diagnosed with sensorineural hearing loss in June 2012. See June 2013 Medical Treatment Record Non-Governmental Facility. While the private audiograms revealed a bilateral sensorineural hearing loss disability, diagnosed by Dr. Alonso, the results did not meet a compensable rating under § 3.385 (2017). Based on these results, the Board finds that the Veteran does not meet a compensable rating for his bilateral hearing loss for this period. At no time during this time-period on appeal has the Veteran manifested with hearing impairment at greater than Level VII hearing acuity in the right ear or greater than Level I hearing acuity in the left ear, which equate to a noncompensable rating. Therefore, the Board concludes that the Veteran's bilateral hearing loss must be maintained at 0 percent. Bilateral hearing loss since March 21, 2017 At a March 2017 hearing before the Board, the Veteran testified that his hearing had worsened. See March 2017 Transcript. He stated that he has replaced his hearing aids on several occasions, but that he continues to have difficulty with his hearing. The Veteran's audiology examinations reveal that he has met the criteria necessary for a 20 percent disability rating under §4.85 since March 22, 2017. VA records show the Veteran underwent audiometric testing for hearing loss in August 2017. See August 2017 Compensation and Pension Examination. Puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 70 70 70 75 75 LEFT 45 55 60 65 65 Speech audiometry revealed speech discrimination ability of 44 percent in the right ear and 84 percent in the left ear. Utilizing 38 C.F.R. § 4.85, Table VI, this corresponds to a hearing level of VIII in the right ear and a hearing level of II in the left ear. The examiner diagnosed the Veteran with sensorimotor hearing loss in the left ear (in the frequency range of 500-4000 Hz and in the frequency range higher than 6000 Hz). She noted that the Veteran's hearing loss; specifically, the Veteran reported that he has overall hearing difficulty. Review of the Veteran's private treatment records indicate that he sought treatment for his sensorineural hearing loss. See July 2017 CAPRI. These records do not indicate that the Veteran's sensorineural hearing loss manifested at a disability rating in excess of 20 percent at any time during this time-point on appeal. Based on these results, the Board finds that the Veteran does not meet a disability rating in excess of 20 percent for his bilateral hearing loss during this time-point. At his August 2017 VA examination, the Veteran manifested with hearing impairment of Level VIII hearing acuity in his right ear and with hearing impairment of Level II for his left ear, which equate to a 20 percent disability rating. ORDER Entitlement to an initial disability rating in excess of 10 percent from October 25, 2011 to March 21, 2017 for cold injury residuals of the right foot is denied. Entitlement to an initial disability rating in excess of 10 percent from October 25, 2011 to March 21, 2017 for cold injury residuals of the left foot is denied. Entitlement to a disability rating in excess of 30 percent since March 22, 2017 for cold injury residuals of the right foot is denied. Entitlement to a disability rating in excess of 30 percent since March 22, 2017 for cold injury residuals of the left foot is denied. Entitlement to an initial compensable disability rating from October 25, 2011 to March 21, 2017 for bilateral hearing loss is denied. Entitlement to a disability rating in excess of 20 percent since March 22, 2017 for bilateral hearing loss is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs