Citation Nr: 1806655	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  09-15 867	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1. Entitlement to an initial compensable evaluation for chronic right meralgia paresthetica with lateral femoral cutaneous nerve damage due to brown recluse spider bite.

2. Entitlement to an initial compensable rating for hearing loss, left ear.

3. Entitlement to service connection for hearing loss, right ear.

4. Entitlement to service connection for left foot disability.

5. Entitlement to service connection for back disability, including as secondary to service-connected chronic right meralgia paresthetica and a claimed right knee disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Elizabeth Jamison, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1972 to July 1977.

This case is before the Board of Veterans Appeals (Board) on appeal from April 2008 and September 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, including with regard to the initial disability ratings assigned for chronic right meralgia paresthetica, and left ear hearing loss.  

In June 2016, the Board remanded the claims on appeal to the agency of original jurisdiction (AOJ) for additional development.  An August 2017 supplemental statement of the case continued the denial of the present claims.

Formal hearings were held before RO Decision Review Officers (DROs) in June 2010 and December 2013.  A videoconference hearing before the Board was held in December 2015.  Subsequently, the VLJ who presided over the December 2015 hearing is no longer employed with the Board.  In December 2017, the Veteran declined the opportunity for another Board hearing and requested that his claims be adjudicated based upon the evidence of record.

This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager paperless claims processing systems.

The issue of entitlement to service connection for a back disability, including as secondary to the service-connected chronic right meralgia paresthetica and any claimed right knee disability, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1.  The Veteran's chronic right meralgia paresthetica with lateral femoral cutaneous nerve damage is manifested by symptoms that more nearly approximate mild to moderate incomplete paralysis.

2.  The Veteran's left ear hearing loss has manifested through no worse than Level I auditory acuity during the entire period on appeal.

3.  Right ear hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of service discharge.

4.  The most probative evidence of record does not reflect an in-service incident or injury related to the left foot; in the absence of an in-service event, a nexus cannot be established between any current left foot conditions and the Veteran's service.


CONCLUSIONS OF LAW

1.  The criteria for a compensable rating for chronic right meralgia paresthetica with lateral femoral cutaneous nerve damage have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.124a, Diagnostic Code 8529.
2.  The criteria for an initial compensable rating for left ear hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b), 4.1- 4.10, 4.21, 4.85, 4.86, Diagnostic Code 6100 (2017).

3.  The criteria establishing entitlement to service connection for right ear hearing loss are not met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2017).

4.  The criteria establishing entitlement to service connection for a left foot condition are not met.  38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). 

VCAA compliant notice was provided to the Veteran via letters sent in January 2008, June 2008, and July 2010.  The Board notes that neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of VA's notice in this matter.  See Shinseki v. Sanders, 129 U.S. 1696 (2009).  The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the relevant records for the claim adjudicated herein.  The pertinent evidence associated with the claim consists of service treatment records (STRs), post-service VA and private treatment records, VA examination reports, and the Veteran's statements.  

Per the June 2016 remand instructions, attempts were made to obtain an employment physical from the Naval Health Clinic in Corpus Christi, Texas; the hospital returned a negative response.  The Veteran was notified that while VA has a duty to make reasonable efforts to assist in obtaining this evidence, ultimately it is the claimant's responsibility to submit relevant evidence in support of a claim.  

In this case, VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession.  The Board therefore finds that VA's duty to assist in obtaining the relevant records is met.

The Board also finds there has been substantial compliance with the June 2016 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

In summary, the duties imposed by the VCAA have been considered and satisfied.   There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim.  Any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal.  Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided.  See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

II.  Increased Ratings

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim.  When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

General rating criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4.  The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. 
§ 4.2, 4.3, 4.7, 4.10.

For an initial rating claim, consideration will be given to "staged ratings" since service connection was made effective.  See Fenderson v. West, 12 Vet. App. 119 (1999).  In other words, where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary.  Id.   

The evaluation of the same disability under various diagnoses is to be avoided.  Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.  38 C.F.R. § 4.14.  

Chronic right meralgia paresthetica with lateral femoral cutaneous nerve damage

The Veteran contends that a compensable initial rating is warranted for chronic right meralgia paresthetica with lateral femoral cutaneous nerve damage due to spider bite.  For the reasons that follow, the Board finds that a compensable rating for this disability is not supported by the evidence of record.

The Veteran's meralgia paresthetica with lateral femoral cutaneous nerve damage is current evaluated as noncompensable under Diagnostic Code 8529, which evaluates paralysis of the external cutaneous nerve of the thigh.  Under Diagnostic Code 8529, a noncompensable (zero) percent rating is warranted for mild to moderate incomplete paralysis of the external cutaneous nerve of the thigh. A maximum 10 percent schedular rating is warranted for severe to complete paralysis of the external cutaneous nerve of the thigh.  38 C.F.R. § 4.124a, Diagnostic Code 8529.

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances.  Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, and injury to the skull.  38 C.F.R. § 4.120.

The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just."  38 C.F.R. § 4.6.

Private treatment records from February 2008 contain a diagnosis of chronic right meralgia paresthetica with lateral femoral cutaneous nerve damage secondary to brown recluse bite.  The Veteran reported numbness in his right thigh.  Physical examination revealed numbness along the lateral femoral cutaneous nerve distribution. 

The Veteran underwent VA examination in March 2008.  He reported a cold and numb feeling from scar up through right lateral thigh with constant also pain that he measured at 4/10.  Physical examination revealed decreased sensation up to 4cm superior to the scar; sensation distal to the scar was intact.

In his May 2008 notice of disagreement, the Veteran described pain which radiates from the site of the spider bite into his right thigh.

VA treatment records from May 2009 contain the Veteran's report of intermittent paresthesias around the right knee scar. 

In June 2010, a co-worker, N.S.C., submitted a statement in which he described witnessing the Veteran limp and use a handrail to go upstairs.  He also described how the Veteran was unable to stand for long periods or participate in sports activities because of right side pain in his back and leg.  The Veteran's spouse also submitted a statement in July 2010.  She stated that he experienced progressively worse pain in his leg and walks with a limp due to pain.  She described the Veteran waking at night complaining of pain.  This pain affected his activities by limiting his ability to walk long distances. 

The Veteran underwent further VA examination in August 2010.  He reported that after his discharge in 1977, he began working in HVAC and construction; it was approximately in 1979 that he noted right knee joint pain while climbing ladders and this has progressively worsened since that time.  The examiner diagnosed right knee degenerative joint disease but stated that it was not caused by or a result of the spider bite residuals.  She further stated that the Veteran may have had a short term antalgic gait due to the service-connected spider bite, however it resolved by the time of his discharge with no mention of back pain or sciatica upon separation.  In a November 2010 addendum, the examiner re-stated her findings and noted that private medical records from 2010 reflected an EMG which revealed only mild S1 radiculopathy with no further electrodiagnostic evidence of any pathology.

Another VA examination was conducted in January 2014 in conjunction with the Veteran's claim of entitlement to service connection for a back condition.  A sensory examination returned normal results for the upper anterior thigh and thigh/knee areas.  The Veteran reported moderate pain, paresthesias/dysesthesias in the right lower extremity.  He denied numbness in his extremities.  The examiner indicated that radiculopathy of the sciatic nerve was of moderate severity. 

In conjunction with the service-connected nerve disability, a VA examination was conducted in March 2014.  The Veteran reported tingling and numbness of the right lateral thigh, which worsened in the winter.  Mild pain, paresthesias/dysesthesias, and numbness were noted in the right lower extremity.  A sensory examination revealed decreased sensation in the thigh/knee area.  The examiner noted that the Veteran's gait was antalgic but attributed it to back, hip, and right knee pain.  He reported that the sciatic and other nerves were normal, but the right side external cutaneous nerve of the thigh suffered from incomplete paralysis measured as mild in severity.  No functional impact was indicated. 

In December 2015, the Veteran testified at a hearing before the Board.  He stated that at first, the condition was severe, but currently, he only really notices it when it gets cold. 

The Veteran underwent further VA examination in conjunction with the nerve condition in May 2017.  The examiner noted the attempt to schedule the Veteran during cold weather, but stated that the examination would proceed in May as it was referred to them for timely completion.  The Veteran reported pain and constant numbness, worsened by the cold.  He described constant mild pain, moderate intermittent pain, mild paresthesias/dysesthesias, and mild numbness in the right lower extremity.  A sensory examination revealed decreased sensation in the thigh/knee area.  Mild incomplete paralysis of the external cutaneous nerve of the thigh was indicated by the examiner.  No functional impact was noted.

After consideration of the above lay and medical evidence, the Board finds that the Veteran's chronic right meralgia paresthetica with lateral femoral cutaneous nerve damage is manifested by symptoms that more nearly approximate mild to moderate incomplete paralysis.

Consideration has been given to lay statements of record from the Veteran, his spouse, and a co-worker.  The Veteran is competent to report symptomatology of pain, numbness, and tingling relating to the meralgia paresthetica of the right lower extremity because this requires only personal knowledge as it comes to him through his senses.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Similarly, his spouse and co-worker are also competent to report the symptoms they have witnessed.  They are not, however, competent to identify a specific level of disability relating such to the appropriate Diagnostic Codes. 

The question of the severity of the meralgia paresthetica of the right lower extremity is medically complex in nature.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  In addition to the meralgia paresthetica disability, the Veteran also has separate claims for a back condition and right knee pain, addressed separately herein.  Meralgia paresthetica, as explained in the VA examination reports, is a medically complex disease process because of its etiology, requires specialized testing to diagnose properly, and sometimes involves symptomatology that overlaps with other disorders.  Id. at 462.  To differentiate pain attributable to the back or right knee from pain due to meralgia paresthetica requires knowledge of multiple other disorders that also cause symptoms of pain and peripheral nerve issues, not just the ability to describe the location of pain. 

Here, the Veteran, his spouse, and co-worker are not shown to have such knowledge, training, or experience to differentiate such symptoms or as to all possible symptoms due solely to meralgia paresthetica.  The subjective descriptions of numbness, tingling, and pain have been considered.  To the extent that the Veteran alleges greater severity than encompassed in the current noncompensable rating, the Board finds that the probative value of his allegations is outweighed by the aforementioned examiners' findings.  Competent evidence concerning the nature and extent of the Veteran's disability has been provided by the VA examiners during the current appeal and provided relevant medical findings in conjunction with the examinations.  In this regard, the medical findings (as provided in the examination reports) directly address the evaluation criteria for this disability.

Accordingly, the Board finds that the medical examination opinions and findings are of greater probative value than the lay allegations regarding the severity of symptoms related to the meralgia paresthetica of the right lower extremity. The Veteran does not meet the Diagnostic Code 8529 criteria for a compensable rating because he has not been shown to have severe to complete paralysis of the external cutaneous nerve of the right thigh.  Rather the examinations characterize the condition as mild to moderate.  Objective testing also reflected that sensory responses and muscle strength were largely normal.  The evidence does not show that any other nerves are affected as a result of this service-connected disability. 

To the extent that the Veteran has alleged worsening during cold weather, the Board notes that the January 2014 VA examination report indicated moderate pain, paresthesias/dysesthesias in the right lower extremity.  Findings during the warmer months have indicated mild severity.  However, even the findings obtained during cold weather do not reflect severe to complete paralysis.  Indeed, at the December 2015 hearing, the Veteran testified that he only really notices the condition at all when it gets cold.  His description of the symptoms even during cold weather does not most nearly approximate severe to complete paralysis.

Accordingly, the Board finds that the Veteran's chronic right meralgia paresthetica with lateral femoral cutaneous nerve damage is manifested by symptoms that more nearly approximate mild to moderate incomplete paralysis.
The Board has also considered whether higher or separate Diagnostic Codes are applicable.  The Veteran has a diagnosis of cutaneous nerve damage, first diagnosed by a private provider and confirmed by the VA examiners throughout the appeal. Accordingly, Diagnostic Code 8529 is the most appropriate Code for application in this case.  See Butts v. Brown, 5 Vet. App. 532 (1993).  A separate rating is in effect for a right knee scar due to spider bite which shares an etiology with the current condition.  As addressed above, a claim for service connection for right knee pain is referred to the RO for further adjudication.  There is no medical or lay evidence of additional symptoms that would not result in the pyramiding of other related Diagnostic Codes.  The Veteran's right meralgia paresthetica with lateral femoral cutaneous nerve damage symptoms are clearly accounted for in the non-compensable rating pursuant to Diagnostic Code 8529.  Moreover, the Veteran's symptoms do not appear to have changed significantly during the appeal period so as to warrant a staged rating.

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, 28 Vet. App. 366  (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

According, the Veteran's claim for an initial compensable rating for right meralgia paresthetica with lateral femoral cutaneous nerve damage is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53.

Left ear hearing loss

The Veteran contends that a compensable initial rating is warranted for left ear hearing loss.

In evaluating hearing loss, disability ratings are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are rendered.  See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).  The Rating Schedule provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, established by a state-licensed audiologist including a controlled speech discrimination test (Maryland CNC), and based upon a combination of the percent of speech discrimination and the puretone threshold average, which is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four.  See 38 C.F.R. § 4.85.  In order 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.  

If impaired hearing is service-connected in 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. Id.  

The regulations also provide that in cases of exceptional hearing loss, i.e. when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz ) is 55 decibels or more, the Roman numeral designation will be determined for hearing impairment, separately, from either Table VI or Table VIa, whichever results in the higher numeral.  38 C.F.R. § 4.86.  A Roman numeral designation will also be determined from either Table VI or Table VIa, whichever results in the higher numeral, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz.  That numeral will then be elevated to the next higher Roman numeral.

The Board notes that in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in the final report.  See Martinak v. Nicholson, 21 Vet. App. 447 (2007).  The VA reports of record, as a whole, reflect the Veteran's reports of the functional impact of his hearing loss.  These notations indicate that the examiners did elicit information from the Veteran concerning the functional effects of his disability as required by 38 C.F.R. § 4.1, 4.2, 4.10.  

Turning to the evidence of record, the Veteran underwent VA examination in March 2008.  Upon audiological evaluation, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
30
55
50
LEFT
25
30
40
65
60

Speech audiometry revealed speech recognition ability of 98 percent in each ear.  The Veteran reported trouble hearing on the telephone at work.  The examiner diagnosed left normal to moderately severe sensorineural hearing loss.  

In a May 2008 notice of disagreement, the Veteran disputed the findings of the March 2008 examination and requested a 10 percent rating for left ear hearing loss.

The Veteran underwent further VA examination in August 2010. On audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
30
30
40
50
50
LEFT
25
25
40
60
60

Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 percent in the left ear.  The examiner diagnosed mild to moderate sensorineural hearing loss with excellent discrimination bilaterally.

VA treatment records reflect that the Veteran was provided hearing aids in late 2010.  Following the Veteran's contention of worsened hearing acuity, the claim was remanded in September 2013.  A new VA audiological examination was conducted in January 2014.  On the audiological evaluation, pure tone thresholds, in decibels, were as follows:





HERTZ



500
1000
2000
3000
4000
RIGHT
25
35
30
55
55
LEFT
25
25
45
60
65

Speech audiometry revealed speech recognition ability of 92 percent in each ear. The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz.  The Veteran reported functional impact from trouble hearing on the telephone in his customer service role at work. 

The claim was again remanded for further development in June 2016.  VA treatment records were obtained.  A July 2016 note reflected mild through 1k sloping to a moderately severe sensorineural hearing loss with 100 speech recognition.  The audiologist noted no change in the left ear since the 2014 VA examination.

The Veteran was afforded another VA examination in May 2017.   On the audiological evaluation, pure tone thresholds, in decibels, were as follows:




HERTZ



500
1000
2000
3000
4000
RIGHT
40
50
45
65
60
LEFT
40
30
45
65
65

Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 percent in the left ear.  The examiner diagnosed bilateral sensorineural hearing loss in the frequency range of 500-4000 Hz.  The Veteran described his work as a financial analyst requiring 75 percent of his day on the phone with customers.  He stated that it is hard to hear their voices with background noise, even using a special headset provided by his company.  The examiner stated that he needs limited background noise and visual cues to hear and understand speech.

After thorough consideration of the evidence of record and application of the results of the audiological examination to the appropriate tables in 38 C.F.R. § 4.85, the Board determines that the Veteran's left ear hearing loss has not warranted a compensable rating during any period on appeal. 

The VA examinations in 2008, 2010, 2014, and 2017 were conducted in accordance with 38 C.F.R. § 4.85(a) and include audiograms.  For each of the VA audiological examinations, the pure tone threshold averages ranged between 46 and 51 in the left ear.  Speech discrimination was measured between 92 and 100 percent.  Under Table VI, an auditory acuity level of I is dictated by the findings of the VA examinations.  Under Table VII, with an auditory acuity of Level I utilized for each ear, a zero percent rating is assigned.  

Exceptional patterns of hearing impairment are not demonstrated in this case, thus application of 38 C.F.R. § 4.86 is not warranted. 

The Board acknowledges the Veteran's assertions that his left ear hearing loss warrants a higher rating and that the VA examinations did not fully encapsulate the severity of his hearing loss.  However, in determining the actual degree of disability under the Schedule for Ratings, an objective examination is required.  38 C.F.R. 
§ 4.85.  As noted previously, because disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered, there is no doubt as to the proper evaluation to assign.  Lendenmann, 3 Vet. App. at 349; 38 C.F.R. 
§ 4.85, Tables VI and VII, Diagnostic Code 6100. 

Consideration has been given to the holding in Martinak, 21 Vet. App. at 455-56, which requires a VA audiologist to describe the functional effects of a hearing loss disability in the examination report.  The March 2008 and January 2014 examination reports noted the Veteran's trouble hearing on the telephone at work.  The May 2017 examination report documented his work as a financial analyst requiring 75 percent of his day on the telephone with customers.  The Veteran described difficulty hearing voices with background noise, even using a special headset provided by his company.  The examiner stated that he needs limited background noise and visual cues to hear and understand speech.  Because the examination reports include a discussion of the functional and occupational impact of the Veteran's hearing loss, the Board finds that the above examinations are adequate for rating purposes and entitled to significant probative value. 

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment or frequent hospitalization.  If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted.

In the present case, the Veteran has not indicated that he experiences symptoms that are not contemplated by the criteria, to include the speech recognition scores or that these symptoms interfere with his employment.  As noted in the VA examination reports of record, the Veteran indicated he has trouble hearing on the telephone and the May 2017 examiner noted that he need limited background noise and visual cues to hear and understand speech.  However, such difficulty is contemplated in the hearing loss criteria.  Cf. Doucette, 28 Vet. App. at 366 (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). Moreover, the Veteran has not claimed, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that his symptoms have otherwise rendered impractical the application of the regular schedular standards.  Therefore, referral for consideration of an extraschedular rating for left ear hearing loss disability is not warranted.  38 C.F.R. § 3.321(b)(1).

The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette, 28 Vet. App. at 366  (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

According, the Veteran's claim for an initial compensable rating for left ear hearing loss is denied.   In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in this case.  See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53.

III.  Service Connection

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record.  Gonzales, 218 F.3d at 1380-81.  The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim.  When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53.

Legal criteria

Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  

In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000).  

Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service.  38 U.S.C. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.307, 3.309.  If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim.  See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997).  Organic diseases of the nervous system, such as sensorineural hearing loss, are included in the list of chronic diseases under 38 C.F.R. § 3.309(a).  

Whether lay evidence is competent and sufficient in a particular case is an issue of fact.  Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (where the condition is simple, for example, a broken leg, but not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991).  Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value.
Right ear hearing loss

The Board notes that the Veteran currently has right ear hearing loss that reaches the level of a disability for VA purposes under 38 C.F.R. § 3.385, as confirmed most recently in the May 2017 VA examination report.  However, as explained herein, the Board finds that service connection for right ear hearing loss is not warranted.  

The Veteran is competent to report hearing-related symptoms he has experienced because this requires only personal knowledge, not medical expertise.  See Layno v. Brown, 6 Vet. App. at 469.  However, he is not competent to opine on the complex medical question of etiology.  Woehlaert, 21 Vet. App. at 456; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d 1372.  

Given the complexity of the medical issues at hand, the VA examiner's May 2017 opinion and August 2017 addendum opinion are given significant weight in regard to the nexus between the symptoms described the Veteran and in-service noise exposure.  The examiner's opinion relating hearing loss to 15 years of post-service heavy equipment exposure rather than noise exposure in service is considered probative, as it is uncontroverted by any evidence of record, apart from the Veteran's own implied assertions.  The examiner explained that delayed onset hearing loss has not been proven to exist in humans.  He also noted that a threshold shift of less than 15dB is considered a normal variance from test to test.  Ultimately, he concluded that right ear hearing loss was less likely than not related to the Veteran's service.  See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data).  Absent countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran's favor.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions).

The Board also notes that the Veteran's hearing loss cannot be service connected on a presumptive basis as a chronic disease.  38 C.F.R. §§ 3.307, 3.309.  The presumption for chronic diseases, including sensorineural hearing loss, deals with three premises: 1) a chronic diagnosis in service linked to the same chronic diagnosis after service; 2) a chronic diagnosis within a year of separation; or 3) continuity of symptomatology.  As described above, there was no diagnosis of right ear hearing loss in service and the Veteran's separation examination and report of medical history are silent to any relevant issues.  Additionally, the record does not contain a diagnosis of hearing loss within a year of separation or evidence weighing in favor of continuity of symptomatology.  To the extent the Veteran has implied entitlement due to a chronic disease, such a contention would be inconsistent with the competent and probative evidence of record.  Accordingly, service connection is not warranted on a presumptive basis. 

Based upon the above, the Board concludes that the probative evidence of record weighs against a finding that the Veteran's right ear hearing loss is related to his military service.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 C.F.R. 
§ 3.102; Gilbert, 1 Vet. App. at 53.

Left foot condition

The Veteran contends that service connection is warranted for a left foot condition incurred in service.  After thorough review of the evidence, the Board concludes that entitlement to service connection for this condition cannot be granted.

As an initial matter, the evidence establishes that the Veteran has been diagnosed with a left heel fracture, plantar fasciitis, and heel spurs, as documented on the May 2017 VA examination.  Thus, the current diagnosis element is met.

However, after consideration of the lay and medical evidence of record, the Board finds that the probative evidence weighs against a finding of an in-service incident or injury related to the left foot.

The Veteran submitted a December 2007 statement in support of his claim in which he alleged that, during his service at Hickam Air Force Base, he injured his left foot and was in a soft type cast for a few weeks.  He sought service connection for the residuals of this injury.

Review of STRs reflects a complaint of a twisted right ankle in October 1976.  No complaint or treatment related to the left foot or ankle is contained in the Veteran's STRs.  Multiple Reports of Medical History completed by the Veteran, including those following the summer of 1976, contain denials of any foot problems.  In his separation physical completed in April 177, the Veteran again denied any foot problems.  The examiner found his lower extremities and musculoskeletal system to be normal.  No relevant abnormalities were noted.  

Furthermore, the Veteran's STRs contain a post-service Report of Medical History dated November 1977 in which the Veteran again denied any foot trouble.   

Post-service private treatment reports reflect that the Veteran was seen in February 2008, at which time he advised the care provider he had twisted his left foot and ankle while in the military.  The physician indicated a chronic strain of the left ankle was present.

In June 2010, the Veteran testified before a DRO regarding his left foot condition.  He stated that he twisted his ankle at the beach in the summer of 1976 and received treatment at the hospital on Hickam Air Force Base.  The Veteran described x-rays and a wrap provided by the hospital. He stated that he was put on light duty for a period of time.  The Veteran also described seeking treatment in the year following his discharge.  He stated that his pain at the time was more surrounding his knee, but that he told the care provider about his ankle condition as well. A physical examination did not reveal any abnormalities; an x-ray was not provided.  

Upon VA examination in January 2014, the Veteran reported injuring his right foot in service and stated that he continues to have problems, especially in the winter with right lateral foot/ankle pain.  He expressed his belief that this was due to the spider bite in service.  He denied any current problems with his left foot.  He admitted major trauma to his left heel three years prior, when falling from a ladder, but acknowledged that this was unrelated to his service.  The examiner found no evidence of a left foot condition related to the Veteran's service.  He opined that as the Veteran worked in laborer positions in HVAC and construction, this would be a more likely etiology of his foot/ankle conditions.

In December 2015, the Veteran testified at a Board hearing regarding his left foot claim.  He described twisting his left ankle while running on the beach in Hawaii.  The Veteran stated the condition did not currently cause him pain, but had been bothersome in service. 

In May 2017, the Veteran underwent another VA examination and described an injury to his left ankle after falling from a ladder six to seven years earlier. 

Unfortunately, confusion seems to have arisen over the ankle at issue during the examinations over the course of the appeal.  There is no question that the Veteran suffered an injury to his right ankle while in service.  However, the Board finds no credible evidence of a left ankle injury in service.  While the Veteran is competent to report the symptoms of left ankle pain in service, this is contradicted by the medical records reflecting a right ankle injury instead. 

In weighing credibility, the Board may consider interest bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desires for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  In this case, the Board finds that the Veteran's statements concerning the left ankle disability lack credibility as they are inconsistent with other evidence of record.  The Board has reviewed the extensive medical history including STRs, VA and private treatment records, reports of VA examination, personnel records, and statements from the Veteran.  

The only evidence reflecting an injury to the left ankle in service is the Veteran's recollection.  STRs reflect a normal lower extremity upon discharge from the service.  By the Veteran's own testimony, an examination in the year following his service confirmed no abnormalities of the left ankle.  Multiple VA examiners have found no evidence of a left ankle injury in service.  The Veteran denied foot trouble repeatedly in service and thereafter.  It appears that the Veteran was not treated for a left foot condition until his fall from a ladder approximately 30 years post-service.  

It was not until after filing a claim for service connection that the Veteran attributed his left ankle problem to his military service.  In this regard, statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care."  Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003); see Fed. R. Evid. 803(4) and accompanying Notes (noting statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate).  Because the Veteran's current statements regarding his left ankle, made in connection with his pending claim for VA benefits, are inconsistent with statements made in his STRs for the purposes of obtaining medical care, the Board finds that his lay statements concerning continuity of symptoms are not credible.  Consequently, the Board assigns little probative value to them. 

The issue before the Board turns upon whether there is evidence of an event, injury, or disease in service.  See Hickson, 12 Vet. App. at 253; Boyer, 210 F.3d at 1351 
In weighing the Veteran's report of his left ankle injury in service against the STRs, VA and private medical records, the Veteran's later statements, and the VA opinions, the Board finds the latter more persuasive.  The Board notes the Veteran's contentions, but finds the probative value of the objective medical records to be overwhelming.  In the absence of credible evidence of an in-service event, no nexus can be established between any current left foot conditions and the Veteran's service.  

For all of these reasons, service connection for a left foot condition is not warranted.  The Board notes that even in the event that an in-service incident could be established, the January 2014 VA examiner opined that as the Veteran worked in laborer positions in HVAC and construction, this would be a more likely etiology of his foot/ankle conditions.  The May 2017 VA examiner likewise found that his foot conditions were less likely than not related to his service.

Based upon the above, the Board concludes that most competent and credible evidence of record weighs against a finding that the Veteran's current condition of left foot condition is related to his military service.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  38 C.F.R. § 3.102 (2017), Gilbert, 1 Vet. App. at 53.


ORDER

Entitlement to an initial compensable rating for chronic right meralgia paresthetica with lateral femoral cutaneous nerve damage due to brown recluse spider bite is denied.

Entitlement to an initial compensable rating for left ear hearing loss is denied.

Entitlement to service connection for right ear hearing loss is denied.

Entitlement to service connection for a left ankle condition is denied.


REMAND

While the Board regrets the delay, additional development is necessary prior to the adjudication of the Veteran's claim of entitlement to service connection for a back condition.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). 

In the June 2016 remand, the Board directed that the AOJ adjudicate the issue of entitlement to service connection for a right knee disability, including as secondary to the service-connected right meralgia paresthetica, as this discrete issue was determined to be "inextricably intertwined" with the appealed issue of service connection for a back disability.  In an August 2017 rating decision, the RO denied entitlement to service connection for right knee arthritis (right knee disability) on a direct basis, but did not adjudicate the issue of service connection for a right knee disability on a secondary basis as directed by the Board in the June 2016 remand.

As indicated in the June 2016 remand, the outcome of the issue of entitlement to service connection for a right knee disability, on either a direct or secondary basis, is "inextricably intertwined" with the appealed issue of service connection for a back disability; especially since, at the December 2015 Board hearing, the Veteran raised the alternative theory of secondary service connection for a back disability, which he maintains is proximately due to or aggravated by a right knee disability.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that issues are "inextricably intertwined" where the adjudication of one issue could have a significant impact on the adjudication of another); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

In this regard, the AOJ must adjudicate the "inextricably intertwined" issue of entitlement to service connection for right knee disability (claimed as right knee arthritis) as secondary to the service-connected right meralgia paresthetica, with due consideration given to both causation and aggravation.  As explained in the June 206 remand, the issue of a right knee disability is distinct from the existing service-connected chronic right meralgia paresthetica, which is noted by definition to affect the thigh and quadriceps regions.

As such, the Board remands the "inextricably intertwined" issue of service connection for a right knee disability (claimed as right knee arthritis) as secondary to the service connected right meralgia paresthetica, to the AOJ for initial adjudication for compliance with the June 2016 Board remand.  See Stegall v. West, 11 Vet. App. 268 (1998). 

Accordingly, the case is REMANDED for the following action:

1.  The AOJ must adjudicate in the first instance the issue of entitlement to service connection for a right knee disability (claimed as right knee arthritis) as secondary to the service-connected right meralgia paresthetica, which is inextricably intertwined with another issue on appeal.  In doing so, the AOJ should consider and apply the provisions of 38 C.F.R. § 3.310 (a) and (b) (2017).

2.  After instruction (1) is completed, and if secondary service connection for a right knee disability (claimed as right knee arthritis) is granted, then the AOJ should arrange for a VA examination of the Veteran to determine the nature and cause of his back disability.  The entire record should be reviewed in conjunction with the examination.  The examiner should respond to the following: 

Please identify the likely cause for the Veteran's back disability.  Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such disability is (a) due to or (b) aggravated (i.e., worsened beyond the natural progress) by a service-connected knee disability (claimed as right knee arthritis)?

If a back disability shown is deemed not be due to, or aggravated by a service-connected right knee disability (claimed as right knee arthritis), then the examiner should, if possible, identify the cause considered more likely and explain why that is so.

A detailed explanation (rationale) is requested for all opinions provided, citing supporting clinical data and/or medical literature, as appropriate.

3.  Then, the AOJ should review the record, conduct any additional development deemed necessary, and readjudicate the issue of service connection for a back disability, including on a secondary basis, based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs