Citation Nr: 18145342 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 16-38 404 DATE: October 26, 2018 ORDER Service connection for a bilateral foot condition is granted. Service connection for depression is denied. An initial compensable rating for bilateral hearing loss is denied.   VETERAN’S CONTENTIONS The Veteran is seeking service connection for a bilateral foot condition and depression. The Veteran contends that his current symptoms of numbness, tingling, and pain in his feet and toes began in service after he got frostbite. The Veteran is also seeking an initial compensable rating for bilateral hearing loss. He contends that the current noncompensable rating does not accurately reflect the severity of his disability. FINDINGS OF FACT 1. The Veteran’s current symptoms of bilateral numbness, tingling, and pain of the feet and toes had their onset during his active duty service. See Service Treatment Records dated May 1979, November 1980, January 1982; October 2014 Private Medical Opinion; but see May 2015 VA Examination. 2. There is no evidence of any current psychiatric diagnosis or of any psychiatric diagnosis, treatment, or symptoms in service. See April 2012 VA Treatment Record (negative screen for depression). 3. Throughout the claim period, the Veteran’s bilateral hearing loss has been manifested by impairment of auditory acuity that is no worse than Level I in both ears. See VA Examinations dated April 2014, November 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral foot condition are met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for depression are not met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1978 to October 1982. This case is before the Board of Veterans’ Appeals (Board) on appeal from April 2015, May 2015, and August 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. 1. Entitlement to Service Connection for a Bilateral Foot Condition Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Here, the Veteran has a diagnosis of bilateral lower extremity small fiber peripheral neuropathy, with symptoms of moderate intermittent pain, paresthesias or dysesthesias, and numbness. See May 2015 VA Examination. The Veteran reports that his foot symptoms had their onset in 1979, during his active duty service. The Veteran is competent to report his own symptoms, and the Board finds him to be credible. Further, his report is supported by an October 2014 private medical opinion, which concluded that the Veteran’s current foot pain is related to his military service. The private examiner reasoned that the Veteran’s report and symptoms were consistent with his service treatment records (STRs), which reflect various complaints of foot problems starting in February 1979. Weighing against this evidence is the opinion of a May 2015 VA Examiner, who concluded that the Veteran’s current symptoms are not related to his active duty service. The VA examiner noted the same history as the private examiner, but concluded that the Veteran’s report and symptoms were not consistent with his STRs, since the complaints reflected in the STRs do not precisely match the Veteran’s current complaints. The VA examiner’s opinion is competent, credible, and entitled to significant weight. Nevertheless, in light of the likewise competent and credible testimony of the Veteran himself, supported by the October 2014 private opinion, the Board finds that the evidence is at least equally balanced as to whether the Veteran’s symptoms had their onset during his active duty service. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s current bilateral foot condition had its onset during his active duty service. See 38 C.F.R. § 3.102. Accordingly, service connection for a bilateral foot condition is warranted. 2. Entitlement to Service Connection for Depression As noted in the above findings of fact, there is no evidence throughout the claim period of any psychiatric diagnosis. The only mention of depression in the medical evidence of record is an April 2012 screen for depression that yielded a negative result. Furthermore, there is no evidence of any psychiatric diagnosis, treatment, or symptoms in service, nor has the Veteran alleged such. An April 2012 VA medical record shows that there was “No H[istory] of Depression/Anxiety or any Psych problem.” Earlier in June 2008, the Veteran likewise “denied any psychological complaints.” In short, there is no evidence of any current psychiatric disability. In making this finding, the Board has broadly construed the claim, but has still identified no indication of a diagnosis or symptoms of a psychiatric condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, there is no evidence of any in-service psychiatric diagnosis, treatment, or symptoms. Consequently, service connection for depression is not warranted, and the claim must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 3. Entitlement to an Initial Compensable Rating for Bilateral Hearing Loss Loss of hearing acuity is evaluated under 38 C.F.R. § 4.85, which establishes eleven auditory hearing acuity levels designated from Level I, for essentially normal hearing acuity, through Level XI, for profound deafness. Disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Veteran’s bilateral hearing loss is currently rated as noncompensably disabling throughout the claim period. The Veteran has been afforded two VA examinations on his hearing loss claim, in April and November 2014. An audiogram produced at the April 2014 VA examination indicated puretone thresholds of 25, 30, 45, and 60 decibels in the right ear and 20, 10, 35, and 55 decibels in the left ear at 1000, 2000, 3000, and 4000 Hertz (“specified frequencies”) respectively, resulting in average puretone thresholds of 40 and 30 decibels in the right and left ears, respectively. A speech audiometry test revealed speech recognition ability of 94 percent and 96 percent in the right and left ears, respectively. Applying these results to Table VI of 38 C.F.R. § 4.85 yields findings of Level I hearing loss in both ears. Where hearing loss is at Level I in both ears, a noncompensable rating is assigned under Table VII. An audiogram produced at the November 2014 VA examination indicated puretone thresholds of 25, 25, 45, and 55 decibels in the right ear and 15, 15, 25, and 60 decibels in the left ear at the specified frequencies, resulting in average puretone thresholds of 37.5 and 28.75 decibels in the right and left ears, respectively. A speech audiometry test revealed speech recognition ability of 100 percent in both ears. Applying these results to Table VI of 38 C.F.R. § 4.85 yields findings of Level I hearing loss in both ears. Where hearing loss is at Level I in both ears, a noncompensable rating is assigned under Table VII. The Veteran has not reported that his hearing loss has worsened since the time of his last evaluation, and he has not alleged any symptoms not contemplated by schedular rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, the criteria for an initial compensable rating for bilateral hearing loss are not met, and accordingly an increased rating is not warranted. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel