Citation Nr: 18150503 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 09-43 963 DATE: November 15, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for left foot neuropathy associated with residuals of a cold injury to the left foot is denied. Entitlement to an initial disability rating of 20 percent, but no higher, prior to April 9, 2012, for right foot neuropathy associated with residuals of a cold injury to the right foot is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating in excess of 20 percent for right foot neuropathy associated with residuals of a cold injury to the right foot is denied. FINDINGS OF FACT 1. The Veteran’s service-connected bilateral hearing loss has been manifested by Level IV hearing acuity bilaterally throughout the appeal period. 2. The Veteran’s left foot neuropathy has been primarily manifested by subjective symptoms of decreased sensation, numbness and tingling that is less noticeable than that on the right; complete paralysis of the foot has not been shown; the Veteran’s disability is productive of no more than mild incomplete paralysis. 3. The Veteran’s neuropathy of the right foot has been primarily manifested by subjective symptoms of decreased sensation, numbness and tingling; complete paralysis of the foot has not been shown; the Veteran’s disability is productive of no more than moderate incomplete paralysis. 4. The Veteran’s service-connected bilateral hearing loss and bilateral foot neuropathy do not present such exceptional or unusual disability pictures that the available schedular evaluations are inadequate. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.71a, Diagnostic Code (DC) 6100. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for left foot neuropathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.71a, Diagnostic Code (DC) 8521. 3. The criteria for entitlement to an initial disability rating of 20 percent, but no higher, prior to April 9, 2012, for right foot neuropathy have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.71a, Diagnostic Code (DC) 8521. 4. The criteria for entitlement to an initial disability rating in excess of 20 percent for right foot neuropathy have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.71a, Diagnostic Code (DC) 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1949 to June 1952. These matters come before the Board of Veterans’ Appeals (Board) from June 2008 and December 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the claims for increased rating in a May 2016 decision, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2018 memorandum decision, the Court vacated and remanded the Board’s May 2016 decision. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss The issue before the Board is whether an initial disability rating in excess of 10 percent is warranted for the Veteran’s bilateral hearing loss. The Veteran contends that an increased rating is warranted as he experienced severe symptoms of hearing loss. As will be discussed in more detail below, the Board concludes that the overall symptomatology and level of impairment have most nearly approximated those indicative of a 10 percent rating. An evaluation higher than 10 percent is not warranted. Ratings of hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second. To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, through level XI, for profound deafness. 38 C.F.R. § 4.85 (h), Table VI. To establish entitlement to a compensable rating for hearing loss, it must be shown that certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss are met. The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. These results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86. Turning to the evidence of record, the Veteran underwent a VA audiological examination in April 2008. On the audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 60 70 70 LEFT 25 40 55 60 70 His puretone average was 60 for the right ear and 56 for his left ear. Speech audiometry revealed speech recognition ability of 82 percent in the right ear and of 80 percent in the left ear. There was no exceptional pattern of hearing impairment in either ear. When the prescribed rating criteria are applied to the results of the May 2008 audiometric test, numeric scores of IV for each ear are obtained. Table VII of 38 C.F.R. § 4.85 provides for the assignment of a 10 percent evaluation for these numeric scores. On the authorized audiological evaluation in September 2012 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 35 45 60 75 80 LEFT 40 45 60 70 80 His puretone average was 65 for the right ear and 64 for his left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 80 percent in the left ear. There was no exceptional pattern of hearing impairment in either ear. When the prescribed rating criteria are applied to the results of the September 2012 audiometric test, numeric scores of IV for each ear are obtained. Table VII of 38 C.F.R. § 4.85 provides for the assignment of a 10 percent evaluation for these numeric scores. The examiner stated that the Veteran’s hearing loss impacted the ordinary conditions of his daily life, including his ability to work. The examiner added that the Veteran had VA-issued hearing aids. He was most recently employed at a manufacturing company, where he was required to wear hearing protection. The Veteran stated that he quit his job about one year ago because he had a hard time understanding his co-workers and supervisors. The examiner added that with amplification and reasonable accommodations, the Veteran’s hearing loss alone should not significantly affect vocational potential On the authorized audiological evaluation in June 2015, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 45 65 75 75 LEFT 30 45 55 65 75 His puretone average was 65 for the right ear and 60 for his left ear. Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 80 percent in the left ear. There was no exceptional pattern of hearing impairment in either ear. When the prescribed rating criteria are applied to the results of the June 2015 audiometric test, numeric scores of IV for each ear are obtained. Table VII of 38 C.F.R. § 4.85 provides for the assignment of a 10 percent evaluation for these numeric scores. The Veteran reported that he needed people to look at him in order to hear and that he had hearing aids, but did not wear them much. At an October 2015 hearing before the Board, the Veteran indicated his hearing was “okay” if a person was talking directly at him, but if they turned their head hearing became more difficult. The Board finds that throughout the entire period on appeal, the Veteran’s service-connected bilateral hearing loss disability did not meet the criteria for a disability rating higher than the currently assigned 10 percent rating. The Veteran has not submitted any evidence that would show entitlement to a higher disability rating. Extraschedular considerations In the January 2018 decision, the Court determined that the Board’s statement of reasons or bases were inadequate with respect to its decision not to refer the Veteran’s hearing loss claim for extraschedular consideration. The discussion above reflects that the rating criteria are adequate for rating the Veteran’s service-connected bilateral hearing loss. Thun v. Peake, 22 Vet. App. 111, 115 (2008). VA examinations have provided adequate descriptions of the functional effects of the Veteran’s hearing loss. Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran’s hearing loss disability has manifested in difficulty hearing or understanding speech and has been evaluated under the applicable diagnostic code that has specifically contemplated the level of occupational impairment caused by hearing loss disabilities. The schedular rating criteria specifically provide for ratings based on all levels of hearing loss, including exceptional hearing patterns which were not demonstrated in this case, and as measured by both audiometric testing and speech recognition testing. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Regarding functional impairment due to ringing in his ears, that is a symptom associated with tinnitus under DC 6260, for which service connection is in effect and the Veteran is receiving compensation. The Board is sympathetic to the Veteran’s position that higher ratings are warranted for his service-connected bilateral hearing loss. However, the audiometric examination results, as compared to the rating criteria, do not warrant a disability rating higher than the currently assigned 10 percent rating for the Veteran’s service-connected bilateral hearing loss. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran’s increased rating claim. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the benefit of the doubt doctrine is not for application. 2. Entitlement to an initial disability rating in excess of 10 percent for left foot neuropathy associated with residuals of a cold injury to the left foot 3. Entitlement to an initial disability rating in excess of 10 percent prior to April 9, 2012, and in excess of 20 percent thereafter, for right foot neuropathy associated with residuals of a cold injury to the right foot The issue before the Board is whether initial disability ratings in excess of those presently assigned are warranted for the Veteran’s bilateral foot neuropathy. The Veteran contends that an increased rating is warranted as he experienced severe symptoms of these respective disabilities. As will be discussed in more detail below, the Board concludes that the overall symptomatology and level of impairment have most nearly approximated those indicative of a 10 percent rating for the Veteran’s left foot neuropathy. Further, the Board concludes that the overall symptomatology and level of impairment have most nearly approximated those indicative of a 20 percent rating, but no higher, throughout the entire period on appeal for his right foot neuropathy. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, diseases of the peripheral nerves are rated on the basis of degree of paralysis, neuritis, or neuralgia. The term “incomplete paralysis” indicates a degree of impaired function substantially less than the type of picture for “complete paralysis” given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement. Id. As detailed above, the Veteran was separately service-connected for radiculopathy of the right and left lower extremities. The Veteran’s bilateral lower extremity radiculopathy is currently rated under 38 C.F.R. § 4.124a, DC 8521 as paralysis of the external popliteal nerve (common peroneal). Mild incomplete paralysis warrants a 10 percent rating; moderate is 20 percent; and severe is 30 percent. For complete paralysis, as shown by complete foot drop and slight drop of the first phalanges of all toes, cannot dorsiflex the foot, extension of proximal phalanges is lost, abduction of foot is lost and adduction is weakened, with anesthesia covering the entire dorsum of the foot and toes, a 40 percent rating is warranted. At his April 2008 VA examination, the Veteran reported current symptoms of nail thickness and changes in color and thickness to the toe nails in both feet. He also reported experiencing lateral foot pain with ambulation and numbness to the toe and a sensation of coolness to the toes. The Veteran denied receiving any treatment for his feet. A neurologic examination revealed that the Veteran’s sensory system was “grossly intact and symmetric.” The examiner noted that monofilament testing resulted in “none on the right 50% on the left of plantar and dorsal feet.” On examination in November 2012, mild incomplete paralysis of the external popliteal nerve was noted bilaterally. It was noted the right lower leg and foot had more loss of sensation than the left lower leg and foot. The Veteran denied pain and stated that the numbness and tingling were moderate in the right foot and mild in the left foot. There were trophic changes noted upon examination, namely, the Veteran had loss of lower extremity hair above the ankles down to his toes. Muscle strength testing was found to be normal in both right and left ankle plantar flexion and ankle dorsiflexion. The Veteran was found to have no muscle atrophy. The examiner found that the Veteran’s cold injury residuals impacted his ability to work. The examiner stated that the Veteran had decreased sensation in his lower extremities, which made it easier to lose his balance and fall when walking on uneven surfaces or going up and down the stairs. The examiner added that the Veteran was able to adapt to working outside on his hobby farm, which entailed working with small numbers of livestock. He was also able to walk on smooth, even surfaces that would not require repetitive use of stairs. The examiner concluded the Veteran would be able to do a sedentary job. In May 2015, the Veteran underwent another examination of his peripheral nerves. The Veteran indicated intermittent moderate pain in the right lower extremity and mild intermittent pain in the left lower extremity. There was mild paresthesias in the left lower extremity; moderate on the right. Mild incomplete paralysis was noted in the external popliteal nerve bilaterally. It was noted that the Veteran’s peripheral neuropathy impacted his ability to work because he could not stand or walk for prolonged periods due to bilateral foot pain. The Veteran did not have trophic changes attributable to peripheral neuropathy. Sensory examination was normal. Muscle strength testing was found to be normal, and the Veteran did not have muscle atrophy. At his hearing in October 2015, the Veteran indicated his feet and his right leg up to the calf were tingly. He indicated the tingling in his right calf was intermittent and the tingling in the feet was constant. He indicated the left leg was not as bad and the tingling started up the calf, but was not as bad as on the right. He indicated having to carefully place his feet on stairs because we could not sense where his foot was on the step by feel. Following a review of the record, the Board finds that a 20 percent disability rating, but no higher, is warranted throughout the appeal period for the Veteran’s right foot neuropathy. However, a disability rating in excess of the currently assigned 10 percent for left foot neuropathy is not warranted. At each examination and at the hearing, the Veteran indicated the symptomatology in his right foot was worse than that in his left. In addition, it appears that the impairment – manifested by tingling and numbness – is wholly sensory. While trophic changes were noted in the November 2012 VA examination, the Veteran’s muscle strength was found to be normal, and no muscle atrophy was noted. Further, the May 2015 VA examination did not find evidence of trophic changes. The Veteran’s bilateral foot neuropathy has been primarily manifested by subjective symptoms of decreased sensation, numbness and tingling. The Board finds that the Veteran’s disability is productive of no more than moderate incomplete paralysis in the right foot and mild incomplete paralysis in the left foot.   Extraschedular consideration In the January 2018 decision, the Court determined that the Board’s statement of reasons or bases were inadequate with respect to its decision not to refer the Veteran’s hearing loss claim for extraschedular consideration. As noted above, the Court vacated the Board’s May 2016 decision because the Board’s statement of reasons or bases were inadequate with respect to its decision not to refer the Veteran’s bilateral lower extremity claims for extraschedular consideration. In this case, the Board finds that the symptomatology and level of disability caused by the Veteran’s bilateral foot neuropathies are specifically contemplated by the schedular criteria, and the Veteran is not entitled to extraschedular ratings for his respective service-connected disabilities. Here, the schedular rating criteria reasonably describe the Veteran’s disability level and symptomatology. As noted above, the Veteran primarily complains that his lower extremity disabilities are manifested by pain, numbness and paresthesia. His symptoms and the type of resulting functional impairment described by him are sensory and contemplated in the rating criteria. There is also no evidence that the Veteran’s bilateral foot neuropathies present other indicia of an exceptional or unusual disability picture, such as marked inference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321 (b)(1). Rather, the evidence of record clearly indicates that the Veteran retained some functional abilities despite the sensory impairments caused by his bilateral foot neuropathies. Notably, the November 2012 VA examination report noted that the Veteran was able to adapt to working outside on his hobby farm, and the VA examiner concluded that the Veteran would be able to maintain sedentary employment. The Board has reviewed all evidence of record and finds that an extraschedular rating is not warranted for any separate period on appeal. Hart, 21 Vet. App. at 505. After a thorough review of the record, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria. Based on the above, the preponderance of the evidence of record is against a grant of an extraschedular evaluation for the service-connected bilateral foot neuropathies. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel