Citation Nr: A21020197 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191024-40855 DATE: December 17, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. Entitlement to an initial disability rating in excess of 10 percent for left foot laceration status post artery repair with residuals, is denied. Entitlement to a separate 20 percent disability rating, but no higher, for a left foot neuropathy disability is granted. Entitlement to an initial 10 percent disability rating, but no higher, for a left foot scar disability is granted. FINDINGS OF FACT 1. The objective medical evidence does not show that the Veteran's service-connected bilateral hearing loss warrants a compensable rating. Hearing levels above I are not shown. 2. Throughout the appellate period, the Veteran's left foot disability has manifested as no more than a moderate foot injury. 3. The Veteran's service-connected left foot disability warrants a separate rating for neuropathy that manifests as incomplete moderate paralysis of the left lower extremity. 4. It is at least as likely as not that the Veteran's left foot scar disability manifests as one or two scars that are painful. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code (DC) 6100. 2. The criteria for a rating in excess of 10 percent for a foot disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5284. 3. The criteria for a separate 20 percent disability rating, but no higher, for left foot neuropathy are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8520. 4. Resolving reasonable doubt in the Veteran's favor, the criteria for a disability rating of 10 percent, but no higher, for a left foot scar disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, DCs 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1986 to December 1988. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. By way of history, the Veteran filed a claim for service connection for a left foot injury with hyperesthesia and bilateral hearing loss in February 2019. An April 2019 rating decision issued by the agency of original jurisdiction (AOJ) granted service connection for bilateral hearing loss and assigned a noncompensable rating, effective February 6, 2019. The April 2019 rating decision also deferred the issues of service connection for left foot hyperesthesia and a left foot scar to obtain VA medical opinions. A June 2019 rating decision granted service connection for a left foot laceration under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5284 (Foot injuries, other) and assigned a 10 percent disability rating, effective February 6, 2019. The June 2019 rating decision also granted service connection for another left foot scar under 38 C.F.R. § 4.118, DC 7802 (scar not of the head, face or neck that are not associated with underlying soft tissue damage) and assigned a noncompensable rating, effective February 6, 2019. The Veteran submitted an October 2019 AMA notice of disagreement (NOD), where he elected the modernized review system. See 38 C.F.R. § 19.2(d). On the October 2019 NOD, he selected a Board appeal with evidence submission reviewed by a Veterans Law Judge, providing him an additional 90 days to submit evidence and that reflects that the Veteran does not want a Board hearing. Accordingly, the Board will consider the evidence of record at the time of the April 24, 2019 and June 1, 2019 rating decisions, and any evidence submitted within 90 days of the Veteran's October 2019 NOD. The Board notes that the Veteran's October 2019 AMA NOD form specifically included his disagreement with the issue of left foot hyperesthesia in the April 2019 rating decision, which was the rating decision that deferred this issue and not the final decision on the matter. The Veteran did not specifically include the left foot scar disability or bilateral hearing loss disability on his NOD form. However, in an attached written statement dated September 2019, the Veteran noted that he has severe pain in his left foot and the area around his scar is very sensitive and causes pain when touched. The Veteran further noted that the rating for his hearing loss disability does not adequately contemplate his disability and he requested to be re-tested. The Board notes that regulations under 38 C.F.R. § 20.202 direct veterans to identify the specific decision and the issue or issues that are subject to disagreement. However, the regulations also direct the Board to construe arguments in a liberal manner. Therefore, as the AMA NOD form only identified the left foot disability and not the left foot scar or hearing loss disabilities, the Board will construe the Veteran's attached written statement as identifying the issues that are subject to disagreement. In so doing, the Board particularly notes that the Veteran's statement included both his left foot disability symptoms as well as the distinct symptoms he attributes to his left foot scar, effectively conveying disagreement with the disability ratings assigned to both. The Veteran also notes that his bilateral hearing loss disability is worse than what is reflected by the disability rating assigned. The Board therefore construes the Veteran's October 2019 AMA NOD as appealing the assigned ratings for his left foot, left foot scar, and bilateral hearing loss disabilities. The Veteran's written statement dated September 2019 also included reference to the disabilities of service connection for posttraumatic stress disorder (PTSD), sleep apnea, joint pain, gout, and high blood pressure. The Board notes that if the Veteran wants to file a claim for service connection for these disabilities, he must file the required forms at a VA Regional Office. Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the appeal stems from a request for higher rating following the award of service connection, evaluation of the medical evidence pertinent to the original claim, and consideration of the appropriateness of staged rating (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 1. Entitlement to an initial compensable rating for bilateral hearing loss Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. In addition to the hearing loss criteria above, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa of 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). Turning to the record, the Veteran was afforded a VA audiology examination in April 2019. An audiogram showed his pure tone thresholds were: 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 30 25 35 45 Left 25 30 40 40 The pure tone threshold averages were 33.75 for both the right and left ears. Speech discrimination testing using the Maryland CNC word list yielded scores of 100 percent for each ear. Evaluating each ear separately, neither ear shows pure tone thresholds indicating exceptional patterns of hearing impairment. Thus, the Roman numeral designation for hearing impairment is derived from Table VI. Applying the April 2019 results, the Veteran's hearing impairment equates to auditory acuity numeric designations of Level I in both ears. Under Table VII of 38 C.F.R. § 4.85, hearing impairment manifested by Level I in both ears comport with the criteria for a noncompensable rating. The AOJ granted service connection for bilateral hearing loss in an April 2019 rating decision and assigned a noncompensable evaluation, effective February 6, 2019. Review of this record reveals that there is no basis to assign a compensable evaluation for the Veteran's bilateral hearing loss. Additionally, there are no findings suggestive of increased impairment or that suggest a higher rating could be assigned. Disability ratings for hearing impairment 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 (1992). In this case, as explained above, the numeric designations are such that increased ratings are not warranted, as described. Here, while the Veteran contends that he is entitled to a higher rating, the evidence does not support his contentions. As such, a higher rating for the Veteran's bilateral hearing loss is not in order. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to an initial disability rating in excess of 10 percent for left foot laceration status post artery repair with residuals 3. Entitlement to a separate 20 percent disability rating, but no higher, for a left foot neuropathy disability 4. Entitlement to an initial 10 percent disability rating, but no higher, for a left foot scar disability The Veteran seeks entitlement to increased disability ratings for his left foot and left foot scar disabilities. Specifically, the Veteran contends that he has severe left foot pain that radiates all over his foot, ankle, and goes up his leg. He also notes that the area around his scar is very sensitive and causes pain if touched and his foot goes numb. See September 2019 Veteran's written statement. The Veteran's left foot disability is currently rated 10 percent from February 6, 2019 under DC 5284. Pursuant to DC 5284 a moderate foot injury is rated at 10 percent, a moderately severe foot injury is rated at 20 percent, a severe foot injury is rated at 30 percent, and with actual loss of the foot a 40 percent rating is warranted. The Board notes that the rating criteria applicable to the foot was revised effective February 7, 2021. See 38C.F.R. §4.71a; 85 Fed. Reg. 76,464 (Nov. 30, 2020). When regulations are revised during the course of an appeal, as here, the Board is required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the claimant. However, if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change; there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the change in law does not impact the evaluation of the Veteran's service-connected foot disability. The Veteran was afforded VA examinations in April 2019 and May 2019. At the April 2019 Foot Conditions examination, the Veteran reported flare-ups of pain occurring periodically and once a week. Functional loss was described as limited feeling on the inner arch feeling like needles being stuck in his foot, cramping in area as well that makes toes contract, and the Veteran has to pull them straight with his hands. The examiner indicated moderate severity of the left foot with residual symptoms as pain with prolonged standing longer than 30 minutes without break and pain with walking. There was pain on movement. The examiner noted one left foot scar that was neither painful nor unstable. The April 2019 examiner also evaluated the Veteran's left foot hyperesthesia and described his symptoms as moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner noted that the Veteran has an abnormal gait. The May 2019 examiner listed the Veteran's diagnosis as left foot laceration status post artery repair with residuals. At the May 2019 examination, the Veteran reported symptoms as loss of sensation, numbness, cramping, swelling, pain radiating in lower extremity, and feels like needles in the arch of his foot. The examiner indicated that the Veteran did not report flare-ups. Functional loss was described as limited capacity to stand and walk. The examiner noted other foot conditions as left medial foot laceration with glass and residual paresthesias. The examiner indicated moderate left foot severity and that the Veteran has one scar that is not painful or unstable. Based on these examinations, the AOJ granted a 10 percent rating under DC 5284 for moderate symptoms of the left foot disability. The Board notes that the Veteran's left foot disability is not applicable under any other diagnostic code. Thus, DC 5284 provides the Veteran with the highest rating currently available for his foot disability. As the Veteran's foot disability has not been shown to be moderately severe and is actually a condition specifically listed in the Rating Schedule, a 20 percent rating under DC 5284 is not warranted. See Copeland v. McDonald, 27 Vet. App. 333 (2015). Accordingly, entitlement to a rating in excess of 10 percent for the Veteran's left foot disability is denied. Next the Board considers whether higher, or additional separate ratings are warranted for neurologic abnormalities associated with the Veteran's service-connected left foot disability. DC 8524 rates incomplete or complete paralysis of the internal popliteal nerve. Mild incomplete paralysis warrants a 10 percent rating, moderate incomplete paralysis warrants a 20 percent rating, severe incomplete paralysis warrants a 30 percent rating; complete paralysis: plantar flexion lost, frank adduction of foot impossible, flexion and separation of toes abolished; no muscle in sole can move; in lesions of the nerve high in popliteal fossa, plantar flexion of foot is lost warrants a 40 percent rating. The April 2019 examiner documented moderate incomplete paralysis of the internal popliteal (tibial) nerve. There was no objective evidence of decreased muscle strength or sensation, however, the examiner noted an abnormal gait. Thus, the Board finds that the Veteran is entitled to a separate 20 percent disability rating for neuropathy of the internal popliteal nerve under DC 8524. In sum, the Board concludes that a separate 20 percent rating, but no higher, is warranted for left foot neuropathy. Higher or separate ratings are not otherwise warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Next, the Board turns to the Veteran's left foot scar disability. The Veteran's left foot scar disability is currently rated as noncompensable under DC 7802 from February 6, 2019. Scars are rated under DCs 7801-7805. DC 7801 provides ratings for deep and nonlinear scars that measure at least 39 square centimeters. 38 C.F.R. § 4.118, DC 7801. Under DC 7802, scars not of the head, face or neck, which are superficial and nonlinear, are granted a 10 percent rating if they cover an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (1): an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. The Board finds that a 10 percent disability rating, but no higher, is warranted under DC 7804. The April 2019 VA examiner found that the Veteran had a left foot lateral scar measured 3.5 cm x 1 cm; she also noted another left foot lateral scar measuring 2 cm x 1 cm and that the Veteran has an abnormal gait. While the examiner initially marked that the Veteran's left foot scar was neither painful nor stable, she later indicated that his foot was painful and caused limited capacity to stand and walk. Accordingly, an initial 10 percent rating is warranted for the Veteran's left foot scar based on disabling effects. The Board concludes that the objective medical evidence and lay statements of record show disability that most nearly approximates that which warrants the assignment of a 10 percent disability rating for the Veteran's left foot scar. See 38 C.F.R. § 4.7. As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating other than those discussed above. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.