Citation Nr: 21071010 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 14-34 964 DATE: November 29, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for a lumbar spine disability is denied. Entitlement to an initial rating in excess of 10 percent for left foot disability is denied. Entitlement to an initial compensable rating for bilateral hearing loss is denied Entitlement to an initial compensable rating for left foot plantar fibroma scar is denied. Entitlement to an initial rating in excess of 10 percent for xerosis is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability results in flexion limited to, at most, 40 degrees. 2. Prior to February 7, 2021, the Veteran's left foot plantar fibroma is characterized by moderate symptoms that include pain and pain on use. 3. Since February 7, 2021, the Veteran has been diagnosed with unilateral plantar fasciitis. 4. The Veteran has been found to have, at worst, Level II hearing loss in the right ear and left ear, bilaterally. 5. The Veteran's scars on the left foot do not cover an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.); cover an area of at least 144 square inches (929 sq. cm.); or, are described as painful or unstable. 6. The Veteran's xerosis affected less than 10 percent of the total body area and exposed body area, and he only required the use of topical medications. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. Prior to February 7, 2021, the criteria for a rating in excess of 10 percent left foot plantar fibroma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5299-5284. 3. Since February 7, 2021, the criteria for a rating in excess of 10 percent for left foot plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5269. 4. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.85, Diagnostic Code 6100. 5. The criteria for an initial compensable rating for scars have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7805 (2017, 2018). 6. The criteria for an initial compensable rating for xerosis have not been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2017, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1983, December 1984 to May 1985, and from September 1987 to December 2008. In December 2018, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge of the Board. A copy of the transcript has been associated with the claims file. In August 2019, the Board previously remanded these claims to the RO for additional development and consideration. All requested actions have been completed and the appeal is once again before the Board. Disability Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 1. Lumbar spine disability The Veteran is seeking an initial rating in excess of 20 percent for his lumbar spine disability. The February 2012 rating decision currently on appeal granted service connection for this disability and assigned an initial 20 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237, effective from February 7, 2011. DC 5237 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DCs 5237-5243 (2020). Under 38 C.F.R. § 4.71a, DCs 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5242. The Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure," for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999). The General Rating Formula for Diseases and Injuries of the Spine, provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010);" DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. Here, the Veteran was examined by VA in a November 2011 and July 2021 VA examinations. See July 2021 Back Conditions Disability Benefits Questionnaires (DBQs). During the November 2011 VA DBQ, the Veteran denied suffering from flare-ups. Range of motion findings showed flexion to 40 degrees, extension to 25 degrees, and bilateral lateral flexion and rotation to 30 degrees. There was no evidence of pain with any movement. The Veteran was able to perform repetitive use testing, with no additional loss in range of motion, but pain was noted on movement. Additionally, there was no evidence of pain on palpation, guarding, or muscle spasms. Muscle strength and sensory testing were both normal. Further, there was no evidence of muscle atrophy, neurological impairments, IVDS, or ankylosis. The Veteran was next examined by VA in July 2021. The Veteran reported suffering from flare-ups. He stated they occur monthly, last 2 to 3 days, are characterized by sharp localized lumbar pain, and precipitated by strenuous activities, such as heavy lifting. The Veteran stated the pain is a 10/10, and he experiences functional impairment in that he cannot push, pull, or lift heavy objects. Range of motion findings showed flexion to 55 degrees; extension to 20 degrees; and bilateral lateral flexion and rotation to 25 degrees. There is no evidence of pain on weight-bearing, nonweight-bearing, active motion, passive motion, and at rest. The Veteran was able to perform repetitive use testing, with evidence of pain on motion. Range of motion findings showed flexion to 50 degrees; extension to 15 degrees; and bilateral lateral flexion and rotation to 20 degrees. During a flare-up, the examiner noted pain on motion, with range of motion findings of flexion to 40 degrees; extension to 10 degrees; and, bilateral lateral flexion and rotation to 15 degrees. There is no evidence of localized tenderness, guarding or muscle spasm. Further, there is no evidence of neurological impairments, muscle atrophy, IVDS, or ankylosis. The July 2021 VA examiner also noted that the prior November 2011 VA Back Conditions DBQ was reviewed. The examiner states that a retrospective opinion regarding the degrees of any additional range of motion lost during flare-ups was not possible as it would result in mere speculation. However, the examiner stated that the Veteran's back condition is stable. See July 2021 VA medical opinion. Also, of record are VA and private treatment records dated during the pendency of this appeal. These records note treatment for the lumbar spine throughout the pendency of the appeal, but there are no additional objective findings that are materially different from those discussed above. Indeed, as was noted in the July 2021 VA medical opinion, the Veteran's treatment for his lumbar spine disability presents a picture of stability. See VA Treatment Records dated June 2018, November 2019, and November 2020. Based on the evidence as noted above, the Board concludes that the evidence does not support a rating in excess of 20 percent at any point during the appeals period. Specifically where the Veteran's flexion has been limited to, at most, 40 degrees. See again November 2011 and July 2021 VA Back Conditions DBQs. The Board also notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than what is supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, including as due to pain. 38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2020). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). Here, with respect to functional loss, the evidence shows that the Veteran's range of motion for flexion was consistently in excess of 30 degrees, which is required for the next higher 40 percent rating for the entire period on appeal. See November 2011 and July 2021 VA Back Conditions DBQs. Therefore, the Board finds that even when considering the functional limitations of less movement than normal as identified in 38 C.F.R. §§ 4.40, 4.45 4.59 as well as the criteria in DeLuca v. Brown and Mitchell v Shinseki, the Veteran's functional loss did not equate to the criteria required for a 40 percent rating when considering the cumulative picture of his lumbar spine disability. 8 Vet. App. 202 (1995), 25 Vet. App. 32 (2011). Further, the November 2011 VA examination report did not find the presence of pain or flare-ups. The July 2021 VA examination report did note the presence of pain, with an additional limitation of 5 degrees flexion, so equating to 50 degrees with repeated use over time. The July 2021 VA examiner also noted flexion limited to 40 degrees during a flare-up. Therefore, even considering the presence of pain and limitations during a flare-up, the Veteran's flexion was limited to at most 40 degrees, which is still in excess of the requirement for the next higher rating of 40 percent, flexion limited to 30 degrees. See Correia, supra; Sharp, supra. Finally, while the Veteran has reported flare-ups, there is no indication he suffered from such restricted range of motion of the lumbar spine that it may be considered the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 10 (2021). In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Here, the evidence does not support a finding for separate ratings based on either bowel or bladder impairment at any point during the pendency of the appeal. Moreover, there is no evidence of radiculopathy of either the left or right lower extremities. See July 2021 VA Back Conditions DBQ. In this respect, the evidence simply does not note the presence of neurological manifestations. In reaching the above conclusions, the Board has not overlooked the Veteran's statements and those submitted on his behalf with regard to the severity of his lumbar spine disability. In this regard, the Veteran and lay witnesses are competent to report on factual matters of which they have firsthand knowledge, e.g., experiencing chronic pain in his back, or experiencing a worsening of that pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements and during his examinations conducted during the course of this appeal with respect to the presence of pain and the severity of such during his VA examinations. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nevertheless, the Board finds the Veteran's statements are not indicative of symptomatology that is more severe than that observed at his VA examinations and do not describe symptoms that would warrant a higher rating. As such, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As the preponderance of the evidence is against a finding in excess of 20 percent, the claim is denied. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Left foot disability The Veteran is seeking entitlement to an initial rating in excess of 10 percent for left foot plantar fibroma rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5299-5284. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional diagnostic code is shown after the hyphen. 38 C.F.R. § 4.27 (2020). Diagnostic code 5299 is used to identify musculoskeletal system disabilities that are not specifically listed in the Schedule, but are rated by analogy to similar disabilities under the Schedule. See 38 C.F.R. §§ 4.20, 4.27 (2020). The Veteran's left foot disability has been rated under Diagnostic Code 5284 for foot injuries, other. As noted above, while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Under Diagnostic Code 5284, a 10 percent disability rating is assigned for moderate symptoms. A 20 percent disability rating is assigned for moderately severe symptoms. A 30 percent disability rating is assigned for severe symptoms. The rating criteria direct that a 40 percent disability rating should be assigned for actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See id. As noted above, when evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran was examined by VA in November 2011 in connection with his claim for service connection for this disability. At that time, the VA examiner diagnosed the Veteran with left foot plantar fibroma. The Veteran reported experiencing pain in the left foot. Upon examination, there was no evidence of Morton's neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, pes planus, or any other foot injuries. There was also no indication of weak foot and the Veteran did not require the use of any assistive devices. X-rays were conducted and reviewed, but not yield any significant diagnostic results. The Veteran was next examined by VA in a February 2012 VA Gulf War Examination. However, the only additional finding on examination was the presence of right foot plantar fibromas. In support of his claim for a higher rating for this disability, in May 2016, the Veteran submitted a private Foot Conditions DBQ, conducted in February 2016. In addition to the left foot plantar fibromas, the private physician diagnosed the Veteran with left foot pes planus. Upon physical examination, it was noted the Veteran experienced pain on use, but not on manipulation, of the left foot. There was no evidence of swelling, characteristic calluses, the use of arch supports/ orthotic, pronation, marked deformity of the foot, weight-bearing line falling over or medial to the great toe, or another lower extremity deformity. The only objective finding was that the Veteran had decreased longitudinal arch height on weight-bearing. The physician also noted the presence of metatarsalgia, but did not indicate which foot. It was noted there was no functional loss due to the left foot disability. There was also no evidence of pain, weakness, fatigue, or incoordination during flare-ups or use over a period of time. Further, the private physician indicated the Veteran used prescribed insoles in his shoes, which is the converse of what was indicated and transcribed earlier in the DBQ report. Overall, the private physician assigned a severity level of moderate for the left foot. X-rays were not conducted. The Veteran was most recently examined by VA in July 2021. The VA examiner diagnosed the Veteran with left foot plantar fasciitis and plantar fibromas, conditions which have stayed the same since the date of onset. The Veteran also reported experiencing constant pain. The examiner did not report experiencing flare-ups. He did report pain on use, which is accentuated on use, and pain on manipulation. There was no indication of swelling, characteristic calluses, extreme tenderness of plantar surfaces, decreased longitudinal arch height, objective evidence of marked deformity, marked pronation, weight-bearing line over or medial to the great toe, or any other lower extremity deformity. As for the diagnosed plantar fasciitis, the examiner noted that non-surgical treatment relieved the symptoms, and there was no evidence of functional loss. The foot condition does not require arch supports, custom orthotic inserts, or shoe modifications. The examiner concluded the Veteran's left foot disability was mild in severity. Moreover, while the examiner noted pain on physical examination, it does not contribute to functional loss or additional limitations. Here, pursuant to Diagnostic Code 5284, the evidence of record, does not show the Veteran's left foot disability may be characterized as moderately severe or severe. In this respect, the Veteran's left foot disability has been described as moderate and mild in the February 2016 Private Foot Conditions DBQ and July 2021 VA Foot Conditions DBQ, respectively. A finding of moderate is contemplated by the currently assigned 10 percent rating. Further, the Board finds no basis to alternately consider the criteria of Diagnostic Code 5277 (bilateral weak foot characterized by musculature atrophy, disturbed circulation and weakness), Diagnostic Code 5278 (acquired claw foot or pes cavus), Diagnostic Code 5280 (hallux valgus), Diagnostic Code 5281 (unilateral hallux rigidus), or Diagnostic Code 5283 (malunion or nonunion of the tarsal or metatarsal bones). The multiple VA examinations of record do not show that the Veteran has bilateral weak foot, claw foot, pes cavus, hallux valgus, hallux rigidus, and x-rays do not reflect malunion or nonunion of the tarsal or metatarsal bones. Finally, the Board notes that the record reflect diagnoses of pes planus and plantar fasciitis of the left foot. See February 2016 Private Foot Conditions DBQ and July 2021 VA Foot Conditions DBQ, respectively. Prior to the regulation changes, effective from February 7, 2021, plantar fasciitis was often rated by analogy under Diagnostic Code 5276, which is also the diagnostic code for flatfoot (pes planus), depending on the symptomatology shown. Under Diagnostic Code 5276, a 10 percent rating is warranted for moderate disability characterized by weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. A rating of 20 percent (unilateral) or 30 percent (bilateral) is warranted for severe disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. A rating of 30 percent (unilateral) or 50 percent (bilateral) is warranted for pronounced disability with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. As of February 7, 2021, under the amended criteria, bilateral plantar fasciitis is rated under Diagnostic Code 5269. Here, a 10 percent rating is warranted for unilateral or bilateral plantar fasciitis. A 20 percent rating is warranted for unilateral plantar fasciitis with no relief from non-surgical and surgical treatment. A 30 percent rating is warranted for bilateral plantar fasciitis with no relief from non-surgical and surgical treatment. Based on the facts above, the Board finds that it is not more advantageous to change the Veteran's diagnostic code to Diagnostic Code 5276 (prior to February 7, 2021). In this respect, concerning Diagnostic Code 5276 (both prior to and since February 7, 2021), neither the February 2016 Private Foot Conditions DBQ nor the July 2021 VA Foot Conditions DBQ found severe disability with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, as is required for the next higher 20 percent rating. The Board also finds that, prior to the February 7, 2021 regulation change that added a specific diagnostic code for plantar fasciitis, the Veteran's bilateral foot symptomatology was otherwise contemplated by the rating criteria for Diagnostic Code 5284 based on his moderate left foot disability symptomatology. See November 2011 VA Foot Conditions DBQ and February 2016 Private Foot Conditions DBQ. However, effective from February 7, 2021, the Board finds the Veteran's left foot disability is more appropriate rated under Diagnostic Code 5269, which is specifically for plantar fasciitis, rather than 5284. It is significant in the Board's view that plantar fasciitis is expressly addressed by a specific diagnostic code. When a condition is specifically listed in the Schedule, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (pes planus is specifically rated under Diagnostic Code 5276; hence an analogous rating under DC 5284 was not permitted). Therefore, because there is a specific diagnostic code for plantar fasciitis (after February 7, 2021), it is not appropriate to rate the Veteran's disability under Diagnostic Code 5284. Despite recharacterizing the Veteran's diagnostic code, the Board does not find a rating in excess of 10 percent is warranted. In this respect, the July 2021 VA examiner noted the Veteran has not undergone a surgical treatment for his diagnosed plantar fasciitis, but non-surgical treatment has relieved his symptoms. See July 2021 VA Foot Conditions DBQ. Thus, a higher 20 percent rating is not warranted. Accordingly, entitlement to a rating in excess of 10 percent for the left foot disability is not warranted. In reaching the above conclusions, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107 (b). 3. Bilateral hearing loss The Veteran is seeking a compensable rating for his service-connected bilateral hearing loss. The February 2012 rating decision currently on appeal granted service connection for this disability and assigned an initial noncompensable rating pursuant to Diagnostic Code 6100, effective from February 7, 2011. Evaluations of bilateral hearing loss range from noncompensable (i.e., 0 percent) to 100 percent based on organic impairment of hearing acuity, as measured by a controlled speech discrimination test (Maryland CNC) and the average hearing threshold, as measured by puretone audiometric tests at the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I, for essentially normal hearing acuity, through level XI for profound deafness. Under 38 C.F.R. § 4.85, Table VI (Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination) is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone average intersect. 38 C.F.R. § 4.85(b). The puretone threshold average is the sum of the puretone thresholds at 1,000, 2,000, 3,000 and 4,000 Hertz, divided by 4. This average is used in all cases to determine the Roman numeral designation for hearing impairment. 38 C.F.R. § 4.85(d). Table VII (Percentage Evaluations for Hearing Impairment) is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poor hearing. The percentage evaluation is located at the point where the rows and column intersect. 38 C.F.R. § 4.85(e). VA regulations also provide that, in cases of exceptional hearing loss, when the puretone thresholds at each of the four specified frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. Each ear will be considered separately. 38 C.F.R. § 4.86(a). The provisions of 38 C.F.R. § 4.86(b) further provide that, when the puretone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be considered separately. As is relevant to this appeals period, the Veteran was first examined by VA in November 2011 during a VA audiological examination. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 40 60 70 LEFT 25 50 60 65 The average puretone threshold reading for the right ear was 49 decibels, and for the left ear was 50 decibels. Speech audiometry revealed speech recognition ability of 98 percent, bilaterally. The examiner noted the Veteran's hearing loss will affect his communication skills. No other impact or functional effect was noted. Application of these pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yields values of Level I, bilaterally, which corresponds to a 0 percent rating pursuant to Table VII. The Veteran was next examined by VA in August 2021 during a VA audiological examination. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 50 55 60 70 LEFT 45 60 70 75 The average puretone threshold reading for the right ear was 59 decibels, and 63 decibels for the left ear. Speech audiometry revealed speech recognition ability of 92 percent for the right ear and 96 percent for the left ear was noted. Further, the Veteran reported difficulty understanding conversations. Application of these pure tone threshold average levels and speech recognition ability (percentage of discrimination) using Table VI yields values of Level II hearing for the right ear and left ear, bilaterally, which corresponds to a 0 percent rating pursuant to Table VII. Based on the findings of the VA examination of record for the period on appeal, the Board finds that the Veteran is not entitled to a compensable rating for bilateral hearing loss at any point during the appeal period as he has been found to have, at worst, Level II hearing loss, bilaterally. Additionally, the Board notes there are VA and private treatment records associated with the claims file that date throughout the pendency of this appeal. However, the records do not contain any additional audiological evaluations or treatment or his bilateral hearing loss. The Board acknowledges the Veteran and contentions that he is entitled to a compensable rating for his bilateral hearing loss due to his in-service noise exposure. See April 2012 Statement in Support of Claim. As noted above, the assignment of the disability rating for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination. Furthermore, the United States Court of Appeals for Veterans Claims (Court) held that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment"which "are precisely the effects that VA's audiometric tests are designed to measure'' and that "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017). The Board finds that the VA examinations are the most probative evidence regarding the severity of the Veteran's bilaterally hearing loss disability. The VA examinations were performed by state-licensed audiologists and included the controlled speech discrimination test using the Maryland CNC test. The Board does not discount the difficulties the Veteran states he has with his auditory acuity. However, the Board must base its determination on the basis of the results of the audiology studies of record. Lindemann v. Principi, 3 Vet. App. 345, 349 (1992). Therefore, the claim is accordingly denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 4. Left foot scar The Veteran is seeking an initial compensable rating for a left scar due to his plantar fibroma. The February 2012 rating decision currently on appeal granted service connection for this disability and assigned an initial 10 percent rating pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805, effective from February 7, 2011. During the pendency of this appeal, VA published a final rule amending its regulations on skin disabilities effective August 13, 2018. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. However, "the case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive." Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)). Here, the recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the Veteran will apply. Under the scar regulations in effect prior to August 13, 2018, scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. §§ 4.118, Diagnostic Code 7801 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.). 38 C.F.R. §§ 4.118, Diagnostic Code 7802 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (in effect from October 23, 2008 to August 13, 2018). Under Diagnostic Code 7805, any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect from October 23, 2008 to August 13, 2018). Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 square centimeters) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 square centimeters) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 square centimeters) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 square centimeters) are rated as 40 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect since August 13, 2018). Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) or greater is rated as 10 percent disabling. 38 C.F.R. §§ 4.118, Diagnostic Code 7802 (in effect since August 13, 2018). Diagnostic Code 7804 was not changed in the August 13, 2018 regulation changes. Again, it provides that one or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (in effect since August 13, 2018). Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect since August 13, 2018). The Veteran underwent a VA Foot Conditions examination in November 2011 in connection with the claim of service connection for left foot plantar fibroma. In relevant part, the VA examiner noted the presence of 2 scars, each measuring 1 centimeter (cm) by 0.1 cm, as a result of a 2007 surgical procedure to remove a fibroma. No other comment was provided. The Veteran also underwent a VA Skin Conditions examination in November 2011. However, the findings in that DBQ were limited to the Veteran's service-connected xerosis. In compliance with the prior August 2019 Board remand, the Veteran was scheduled for VA examinations in July 2021. A July 2021 VA Foot Conditions DBQ did not provide any comment on the left foot scars. The July 2021 VA Scars DBQ notes the Veteran's report that the scars have stayed the same since the last examination in November 2011, each measuring 1 cm. by 0.1 cm. The scars were found to be not painful or unstable, and without frequent loss of covering of skin over the scar. There was no evidence of tenderness to palpation of underlying soft tissue damage. No other objective findings were noted on the examination. Finally, the accompanying July 2021 VA medical opinion notes the presence of 2 non-painful scars on the left plantar area, each measuring 1 cm by 0.1 cm. The Veteran's VA and private treatment records do not document any complaints or treatment for the scars during the pendency of this appeal, noting only the existence of the scars during his various examinations and treatment visits. Based on the evidence as discussed above, the Board does not find a compensable rating is warranted as the evidence does not show the Veteran is entitled to compensable ratings under Diagnostic Codes 7801, 7802, or 7804 under either the regulations prior to August 13, 2018, or since. Specifically, for the criteria prior to August 13, 2018, the scar was not found to be deep and nonlinear, and covering an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.) Diagnostic Code 7801); superficial and nonlinear, and covering an area of at least 144 square inches (929 sq. cm.) (Diagnostic Code 7802); or, described as painful or unstable (Diagnostic Code 7804). For the criteria in effect since August 13, 2018, the scars do not result in underlying soft tissue damage in an area or areas exceeding 6 square inches (Diagnostic Code 7801); not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) (Diagnostic Code 7802); or, described as painful or unstable (Diagnostic Code 7804). Pursuant to Diagnostic Code 7805, there are no other disabling effects not previously considered that would warrant a compensable rating in either the criteria in effect prior to or since August 13, 2018. Thus, the medical evidence of record contains no evidence showing that the Veteran's disability results in findings that would warrant the assignment of an initial compensable rating. Finally, the Board has considered any statements made by the Veteran or his representative in support of his appeal. Specifically, during his December 2018 Board hearing, the Veteran's representative testified that the Veteran has to wear a certain type of shoe without arches and, as a result, his scars are painful. However, even on examination, there was no indication that the Veteran's scars themselves were painful. Instead, as discussed above, it was noted that the Veteran suffers from pain as a result of his left foot plantar fibroma disability, for which he is separately rated and the presence of pain has been considered therein. See again November 2011 and July 2021 VA Foot Conditions DBQs. Therefore, the Board finds there have been no arguments put forth that would warrant a compensable rating for the Veteran's scars. Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 5. Xerosis The Veteran is seeking a compensable rating for a skin disability, diagnosed as xerosis. The February 2012 rating decision currently on appeal granted service connection for this disability and assigned an initial noncompensable rating pursuant to Diagnostic Code 7806, effective from February 7, 2011. As noted above, during the pendency of this appeal, VA recently published a final rule amending its regulations on skin disabilities effective August 13, 2018. The Board will therefore evaluate the Veteran's skin disability under both the old and new criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 ; VAOPGCPREC 3-2000 (Apr. 10, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). During the pendency of this appeal, the Schedule for Rating Disabilities that addresses diagnostic codes 7801, 7802, 7805, and 7806 has been amended, which went into effect on August 13, 2018, 83 Fed. Reg. 32592 (July 13, 2018). Accordingly, both versions of the ratings schedule are applicable to this claim. VA will consider the claim in light of both versions and whichever is most favorable to the Veteran will be applied. Under the previous criteria, under 38 C.F.R. § 4.118, Diagnostic Code 7806, a 10 percent rating is warranted when there is at least five percent, but less than 20 percent of the entire body, or at least five percent, but less than 20 percent of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. For the Veteran to be entitled to the next available rating of 30 percent under Diagnostic Code 7806, the evidence must show the disability covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. Under the amended criteria, under 38 C.F.R. § 4.118, Diagnostic Code 7806, a 10 percent rating is warranted when there is at least one of the following: characteristic lesions involving at least five percent, but less than 20 percent of the entire body affected; or at least five percent, but less than 20 percent of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than six weeks over the past 12-month period. 38 C.F.R. § 4.118 defines systemic therapy as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. A 30 percent rating requires at least one of the following (1) characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. 38 C.F.R. § 4.118. Under both sets of criteria, the disability can also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), the provisions of which are discussed above. However, there is no evidence the Veteran's skin disability, diagnosed as xerosis, has resulted in disfigurement of the head, face, and neck. Additionally, there is no evidence of scarring. As such, consideration of other diagnostic codes is not necessary. See November 2011, July 2021 VA Skin Conditions DBQ, and July 2021 VA Medical Opinion. In support of his claim for service connection, the Veteran was scheduled for a VA Skin Conditions examination in November 2011. At that time, the VA examiner confirmed the diagnosis of xerosis. The Veteran reported experiencing a dry rash on his forearms. There was no evidence of scarring or systemic manifestations. The examiner noted that the Veteran has not used oral or topical medications within the past 12 months, or has had any other treatment. There was no evidence of either debilitating or non-debilitating episodes. Upon examination, it was found that the xerosis covered less than 10 percent of the total body area and 0 percent of the exposed body area. There were no other physical findings noted on examination, including any other diagnosed skin disorders. The Veteran was reexamined by VA in a July 2021 VA Skin Conditions DBQ. At that time, the examiner provided a diagnosis of xerosis, which was noted to have stayed the same since the last examination. The Veteran reported the use of topical medications, Ammonium Lactate, on an intermittent basis when itching, for a total duration of less than 6 weeks. No other treatments or procedures were required. There was no evidence of either debilitating or non-debilitating episodes. Upon examination, the examiner noted there was no evidence of scarring or disfigurement. It was found that the xerosis covered less than 5 percent of the total body area, and less than 5 percent of the exposed body area. The examiner specifically noted that dry skin was found on the bilateral forearms, described as a "redish area." There were no other physical findings noted on examination. The Veteran's treatment records do not document any complaints or treatment for this skin disability during the pendency of this appeal, noting only its existence. Thus, the Veteran's medical records do not include any evidence that would warrant a rating in excess of 10 percent for the xerosis. Here, the Board finds that the Veteran is not entitled to the next higher 30 percent rating under the prior criteria as the evidence does not show xerosis covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. See November 2011 and July 2021 VA Skin Conditions DBQ. Similarly, in order to be award a 30 percent rating under the revised criteria, the Veteran would have to show characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy, or other immunosuppressive drugs required for a total duration of 6 weeks or more. As noted above, the Veteran has only used topical medications throughout the entire appeal and has never been reported to have more than 10 percent of the entire body or exposed areas affected. See id. The Board is sympathetic to the concerns that have been voiced that include the Veteran's statements that he believes he is entitled to a higher rating as the skin disability is intermittently itchy. See December 2018 Board Hearing Transcript. Further, the Veteran testified that he experiences sensitivity to bug bites, which results in discoloration to his skin. Indeed, during the hearing the Veteran illustrated this point to the presiding Veterans Law Judge by showing his right leg. However, as noted in the November 2011 and July 2021 VA Skin Conditions DBQs, the diagnosed xerosis affects the Veteran's bilateral forearms and has not been shown to occur on his legs. Thus, while the Veteran is competent to report his dermatological symptoms, as well as his skin treatment, he is not competent to make the requisite clinical findings under the relevant rating criteria. Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds the objective, competent medical evidence discussed above - specifically the VA examination reports and treatment records - more probative than the Veteran's lay statements in establishing his specific level of symptomatology and impairment under Diagnostic Code 7806. Therefore, the Board finds that the Veteran is not entitled to an rating in excess of 10 percent. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.