Citation Nr: 18155406 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 15-42 339 DATE: December 4, 2018 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to a rating of 10 percent, but no higher, for right big toe and meta-contusion and sprain is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that there is a current disability of bilateral hearing loss according to VA standards. 2. The Veteran’s right toe disability is manifested by pain upon prolonged walking, standing and weight bearing which results in moderate impairment of the foot. 3. The totality of the evidence fails to reveal more severe manifestations that more nearly approximate a moderately severe or severe right foot injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303(a), 3.385 (2018). 2. The criteria for entitlement to a rating of 10 percent, but no higher, for right big toe and meta-contusion and sprain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.59, 4.71a, Diagnostic Code 5284 (2018). 3. The criteria for entitlement to a rating in excess of 10 percent for right big toe and meta-contusion and sprain have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.59, 4.71a, Diagnostic Code 5284 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army National Guard from July 2005 to December 2005 and the U.S. Army from November 2009 to September 2010. This appeal to the Board of Veteran’s Appeals (Board) arose from an August 2015 rating decision by the Department of Veteran Affairs (VA) Regional Office. The Veteran has perfected the appeal. See September 2015 Notice of Disagreement; November 2015 Statement of the Case (SOC); November 2015 Substantive Appeal (VA Form 9). The Veteran requested a hearing in this matter. The hearing was scheduled for November 2018. However, the Veteran failed to appear to at the hearing. Service Connection A Veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in-service injury or event; and (3) a nexus between the current disability and the in-service injury or event. 38 C.F.R. §3.303(a). Service connection can also be granted for chronic disabilities, if the evidence establishes that it manifested to a compensable degree within one year after the Veteran was separated from service. 38 C.F.R. §3.307, §3.309. Service connection for chronic disabilities can be established through a showing of continuity of symptomatology since service, as an alternative to the nexus requirement. 38 C.F.R. §3.303(b). This option is limited to chronic disabilities listed in 38 C.F.R. §3.309(a). When there is an approximate balance of positive and negative evidence regarding any material issues, the Secretary shall give the benefit of the doubt to the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for bilateral hearing loss. The Veteran contends that he currently has bilateral hearing loss and it is due to his service. Specifically, the Veteran states that while in Iraq and working as a bridge engineer, he was surrounded by a lot of gunfire. He also contends that building a bridge caused a lot of noise as well. The Veteran claims that he did not wear earplugs or earmuffs. Once he returned from Iraq, he noticed that his hearing was a little different. He works as a medical support assistant and expresses that he has trouble hearing the patients, having to ask them to repeat themselves or speak louder. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz 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. Turning now to the evidence on the record, in his reference audiogram dated April 2009, the Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 0 0 5 10 5 RIGHT 0 0 5 20 5 In an audiogram dated September 2009, the Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 0 15 10 5 RIGHT 0 0 5 15 5 In an audiogram dated August 2010, the Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 10 5 10 10 5 RIGHT 20 20 5 20 0 The July 2015 VA examination shows the Veteran’s Maryland CNC Word List speech recognition scores were 98 percent in the left ear and 96 percent in the right ear. The Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 15 25 25 25 RIGHT 25 20 25 35 30 The March 2016 VA examination shows the Veteran’s Maryland CNC Word List speech recognition scores were 96 percent in the left ear and 94 percent in the right ear. The Veteran’s puretone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 20 20 20 20 25 RIGHT 20 20 25 35 25 Based on the evidence of the record, the Board finds that there is no current disability. As there is no current disability, by regulation, service connection cannot be warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the Veteran contends that he has hearing loss that had its onset in service, his statements are outweighed by the lack of confirmation of hearing loss disability, within VA standards, on examination. Here, both the July 2015 and March 2016 examiners are VA audiologists and possess the necessary education, training, and expertise to provide the requested examination and opinion. There is simply no medical confirmation of any hearing loss as defined by VA regulation. The Board acknowledges the Veteran’s assertions that he has bilateral hearing loss. Although lay persons are competent to provide opinions on some medical opinions, determining the etiology of hearing loss falls outside the realm of common knowledge of a lay person. The Veteran has not demonstrated the medical expertise required for this matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). The Board finds that the weight of the evidence is against a finding of service connection for bilateral hearing loss. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s right toe disability is currently rated as noncompensable under the hyphenated diagnostic code (DC) 5299-5284. The Veteran’s condition is not specifically listed in the rating schedule. Therefore, the Veteran’s disability must be rated by analogy. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" by using the first two digits of the diagnostic code for the most closely analogous disability, followed by the terminal digits "99" connoting an unlisted condition. See 38 C.F.R. § 4.27. Under DC 5284, a 10 percent rating contemplates moderate foot injury; a 20 percent rating contemplates moderately severe foot injury; and a 30 percent rating contemplates severe foot injury. The Note corresponding to the DC indicates that the actual loss of use of the foot is rated at 40 percent. 38 C.F.R. § 4.17a. The words "moderate," "moderately severe," and "severe" are not defined by DC 5284. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. 2. Entitlement to a rating of 10 percent, but no higher, for right big toe and meta-contusion and sprain. The Veteran contends that his right toe disability should be assigned a higher rating than currently imposed. Specifically, the Veteran expresses that he limps a lot when walking and feels pain to work, affecting his ability to run or jog. He has been feeling the pain ever since his injury in-service. In the July 2015 VA examination, it was noted that the Veteran stubbed his right great toe while in service in March 2010, and suffered a contusion. He contends that his toe continues to hurt every day. The pain is aggravated by certain footwear and also by being on his feet. The Veteran does not have to use inserts for his shoes, take medication for the pain, or have surgery for the condition. The Veteran describes the pain being felt at the dorsum of the right first metacarpal-phalangeal joint. The pain is rated at a six out of ten and is aggravated by certain shoe wear, prolonged standing, walking, and running. The Veteran reported that flare-ups impacted the function of his foot. The flare-ups cause him to limp a bit, but does not stop him from his usual activities but avoids activities that require more walking or running when flare-ups are present. There was no pain noted on the physical exam for his right foot. There was no functional loss for right lower extremity attributable to claimed condition. There is functional loss during flare-ups or when the foot is used repeatedly over a period of time. There is no functional impairment of an extremity that requires an amputation with prosthesis. The examiner remarked that he found a mild hallux valgus deformity of the right 1st metacarpal-phalangeal joint, a bunion. The symptoms of right great toe pain the Veteran is experiencing describing is typical of a bunion. The examiner opined that the bunion is less likely than not caused or a result of the mild contusion he experienced when he stubbed his toe in Iraq. In the June 2016 VA examination, it was noted that the Veteran’s pain is initially a ten out of ten for at least a half of each day. The pain is aggravated by walking and running, and alleviated by ice and ibuprofen. Since his separation from service, the Veteran experiences pain in his foot three times a week, from a level of four to ten. Since being examined ten months ago, he has not had a significant change in his pain or functionality. The Veteran contends that there has not been an increase in his symptoms or any new symptoms since his initial evaluation. The pain is located at the bottom of his big toe on the right and radiated to the ball of his right foot. Currently he feels the pain three times a week with walking for more than five minutes. The Veteran reported having flare-ups. When he experiences flare-ups, he has to rest. He has difficulty walking distances. It does not impact his job, but does impact his ability to engage in sport activities that require running. The Veteran was reported to not have hallux valgus or hallux rigidus. There was pain reported on the physical exam and it contributed to functional loss. There was pain on movement and weight-bearing. There was interference with standing and lack of endurance reported for the right side. There is pain, weakness, fatigue, or incoordination that significantly limits functional ability during flare-ups or when the foot is used repeatedly over a period of time, specifically when it comes to walking long distances or participating in physical activities that require standing, running, or walking more than 5 to 10 minutes without rest. There is full range of motion in the big toe but pain was noted. It was noted that the Veteran had metatarsalgia, but it is likely related to pes planus and not due to his service-connected injury. The Veteran has to use special orthotics. It was also noted on the X-ray and MRI that he had an effusion on the first metatarsal with the impression it was due to repetitive strain or possibly an inflammatory prosses such as gout. The examiner opined that it was less than 50 percent likely that it was due to the Veteran’s service-connected injury. The examiner remarked that the sprain and contusion is stable to slightly improved from date of initial injury. The current pain is as likely as not related to congenital unaggravated pes planus. The VA treatment records from September 2015 to June 2016 detail the Veteran’s complaints regarding his right toe pain. The Veteran describes the pain as sharp and aching pain that can occur at rest and with ambulation. The Veteran has contended that since his 2010 in-service injury, he has experienced intermittent pain in his right big toe. Based on the evidence of the record, the Board finds the Veteran has exhibited a moderate level of severity due to his right toe disability. The Veteran has experienced pain when standing or walking for more than five to ten minutes. He experiences flare-ups which affects his functionality. The Board determines that this is a moderate level as listed on the DC 5284. Taking into consideration the Veteran’s reported limitation during flare-ups, functional impairment, limitation due to pain, and that his contentions about his right big toe pain have essentially remained the same throughout the period, the Board resolves reasonable doubt in favor of the Veteran and finds that the Veteran’s right toe disability has more closely approximated the criteria contemplated in the 10 percent criteria for moderate foot injury. Despite the findings reported during the July 2015 and June 2016 VA examinations, which are to the effect that the Veteran does not have any compensable symptoms related to his service-connected disability, the Board notes again that the Veteran has provided credible testimony that he experiences pain from his right big toe since his injury in-service. Based on this information, and resolving all reasonable doubt in the Veteran's favor, the Board finds that a 10 percent disability rating is warranted for his service-connected right big toe disability. The Board has also considered the applicability of other Diagnostic Codes related to foot disabilities. These allow for ratings based on the presence of weak foot, acquired pes cavus, pes planus, Metatarsalgia, hallux rigidus, hallux valgus, malunion, or nonunion of the tarsal or metatarsal bones. See 38 C.F.R. § 4.71a, DCs 5276-5283. However, there is no evidence or allegation that the Veteran's right big toe disability is productive of such conditions. Therefore, these diagnostic codes are inapplicable. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). The Board is aware that the Veteran was diagnosed with pes planus during the June 2016 examination. However, there is no indication that such is a direct manifestation of or in relation to the Veteran's right big toe disability. The Board also notes that the examiner opined that the pain the Veteran is experiencing is likely to be from pes planus. However, there is evidence that the pain begins from the toe. Again, the Board will resolve reasonable doubt in favor of the Veteran. Also, the Veteran was diagnosed with metatarsalgia at the June 2016 VA examination. However, as mentioned previously, it was noted that it was not related to his service injury. Similarly, although the July 2015 examination diagnosed hallux valgus on the right foot, the subsequent June 2016 examination noted that the Veteran did not have symptoms due to a hallux valgus condition. Therefore, while the Veteran is in no way barred from submitting evidence and advancing a theory of entitlement for an original claim of service connection for these disabilities, separate ratings for such cannot be granted as part of the present analysis, which is limited to evaluating the level of disability presented specifically by his right big toe. See 38 C.F.R. § 4.71a, DC 5284. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s right toe disability. While functional loss and impairment was found during flare-ups and repeated use, it was not noted to be severe but rather resulted in limitation in prolonged standing or walking. He is able to work. In the VA treatment records, it was noted that his condition was slightly improving. There is no evidence indicating that his functional impairment is impacted to the level of moderately severe or severe during times of flare-ups or repeated use. Thus, the Board finds that a rating in excess of 10 percent is not warranted. (Continued on the next page)   The Board finds that a rating of 10 percent, but no higher, for the Veteran’s right big toe disability is warranted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel