Citation Nr: 21013570 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-21 042 DATE: March 9, 2021 ORDER A timely substantive appeal was not filed as to the rating decisions issued in August 2012 and November 2013; the appeal as to timeliness of the VA Form 9 submitted in December 2016 is denied. Service connection for a back disorder, including degenerative disc disease as secondary to the Veteran’s service-connected left first metatarsophalangeal (MTP) joint disability, is dismissed. Service connection for a bilateral hip condition, to include as secondary to the Veteran’s service-connected left first MTP joint disability, is dismissed. Service connection for a left ankle disorder, to include as secondary to the Veteran’s service-connected left first MTP joint disability, is dismissed. Service connection for an acquired psychiatric disability, to include adjustment disorder, is granted. A rating in excess of 10 percent from November 7, 2016, to December 27, 2019, and 20 percent thereafter, for left first MTP joint disability is denied. A compensable rating for bilateral sensorineural hearing loss is denied. An effective date before November 7, 2016, for a 10 percent disability rating for strain of the left MTP joint is denied. The petition to reopen the claim of service connection for a heart condition on the basis of new and material evidence is denied. The petition to reopen the claim of service connection for hypertension on the basis of new and material evidence is denied. The petition to reopen the claim of service connection for diabetes mellitus on the basis of new and material evidence is denied. FINDINGS OF FACT 1. A rating decision issued in August 2012 declined to reopen a previously denied claim of service connection for a left ankle disability, assigned noncompensable ratings for residuals, old strain, left first metatarsophalangeal joint and bilateral hearing loss, and assigned a 10 percent rating for tinnitus. In June 2013, the Veteran expressed disagreement with the August 2012 rating decision. 2. An additional rating decision issued in November 2013 denied service connection fora heart condition, hypertension, diabetes mellitus, a bilateral hip condition, a back condition, and an acquired psychiatric disorder. In September 2014, the Veteran expressed disagreement with the November 2013 rating decision. 3. In October 2015, the Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC) addressing each of the issues with which the Veteran disagreed from the August 2012 and November 2013 rating decisions. Following the October 2015 SOC, a timely substantive appeal was not received to perfect the appeal as to any of the issues addressed therein. 4. In a May 2020 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) granted entitlement to service connection for back, bilateral hip, and left ankle disabilities, representing a full grant of the benefits sought on appeal; the Veteran has not expressed disagreement with these awards as assigned. 5. Resolving all reasonable doubt in favor of the Veteran, his psychiatric disorder, diagnosed as adjustment disorder, is at least as likely as not related to his active duty service. 6. Prior to December 27, 2019, the Veteran’s left first MTP joint disability was productive of moderate impairment due to pain. Thereafter, this disability was productive of moderately severe impairment due to pain. 7. During the present appeal, the Veteran’s bilateral hearing loss is manifested by an average loss of no greater than 46 decibels in the right ear and 53 decibels in the left ear with 94 percent word recognition bilaterally, representing a Level I impairment bilaterally for VA compensation purposes. 8. The Veteran did not submit an informal or formal claim seeking an increased rating for his service-connected strain of the left MTP joint prior to his claim which VA received on November 7, 2016, and there is no factually ascertainable basis to conclude that his disability increased in severity within the year before VA received his claim. 9. Evidence submitted since the November 2013 final rating decision does not raise a reasonable possibility of substantiating the claims of service connection for diabetes, a heart condition, or hypertension. CONCLUSIONS OF LAW 1. The criteria for timely filing a substantive appeal to the August 2012 and November 2013 rating decisions have not been met. 38U.S.C. §§ 7105, 7108; 38 C.F.R. §§ 20.202, 20.302(b). 2. The Board lacks jurisdiction over the claim of entitlement to service connection for a back condition because that claim has been granted and rendered moot. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 20.101. 3. The Board lacks jurisdiction over the claim of entitlement to service connection for a bilateral hip condition because that claim has been granted and rendered moot. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 20.101. 4. The Board lacks jurisdiction over the claim of entitlement to service connection for a left ankle condition because that claim has been granted and rendered moot. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 20.101. 5. The criteria for entitlement to service connection for a psychiatric disorder, diagnosed as adjustment disorder, have been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 6. The criteria for entitlement to a rating in excess of 10 percent from November 7, 2016, to December 27, 2019, and from 20 percent thereafter for left first MTP joint disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.31, 4.72, Diagnostic Code 5284. 7. The criteria for entitlement to a rating in excess of zero percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.31, 4.85, Diagnostic Code 6100. 8. The criteria for an effective date prior to November 7, 2016, for the assignment of a 10 percent rating for strain of the left MTP joint are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400, 4.72, Diagnostic Code 5284. 9. The criteria for reopening the claims of entitlement to service connection for a heart condition, hypertension, and diabetes mellitus have not been met. 38 U.S.C. § 5108; 38C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1971 to November 1971, receiving an honorable discharge due to hardship. The case was previously before the Board in June 2019, at which time the Board determined that the Veteran did not perfect an appeal following rating decisions in August 2012 and November 2013. However, the Veteran appealed the timeliness matter and simultaneously resubmitted and perfected appeals on the underlying matters of service connection and increased ratings. Thus, although the Board declined to exercise jurisdiction over the appeals stemming from rating decisions in August 2012 and November 2013 as they were not timely perfected, the Board did reach the underlying issues to reopen those claims flowing from the subsequently perfected appeal later filed in November 2016. In its June 2019 decision, the Board determined that a timely substantive appeal was not filed as to the rating decisions issued in August 2012 and November 2013 and denied the appeal as to the timeliness of a VA form 9 submitted in December 2016; denied the petition to reopen the claims of service connection for a heart condition, hypertension, and diabetes mellitus; and denied a compensable rating for bilateral sensorineural hearing loss. The Board also determined that new and material evidence had been submitted to reopen the claims for service connection for left ankle, low back and bilateral hip disabilities. The Board remanded the reopened service connection claims, along with appeals seeking service connection for an acquired psychiatric disability (to include mood disorder as secondary to service-connected tinnitus); a rating in excess of 10 percent for the left first MTP joint disability; and an effective date before November 7, 2016, for a 10 percent rating for the left first MTP joint disability. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the part of the June 2019 Board decision which determined a timely substantive appeal was not filed as to the rating decisions issued in August 2012 and November 2013 and denied the appeal as to the timeliness of a VA form 9 submitted in December 2016; denied the petition to reopen the claims of service connection for a heart condition, hypertension, and diabetes mellitus; and denied a compensable rating for bilateral sensorineural hearing loss. See September 2020 Court JMPR (finding that the Board erred in failing to address whether the notification of the October 2015 Statement of the Case (SOC) was sent to the Veteran and his representative). The Court then remanded the case for action in accordance with its decision. The case was subsequently returned to the Board. 1. Whether a timely substantive appeal was filed as to the rating decisions issued in August 2012 and November 2013. The Board’s authority to review an adverse Agency of Original Jurisdiction (AOJ) decision is initiated upon a claimant’s submission of a Notice of Disagreement (NOD) and completed by a substantive appeal after an SOC has been furnished. 38 U.S.C. §§ 7105(a); 38 C.F.R. § 20.200. As relevant to the instant case, a substantive appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans’ Appeals” or correspondence containing the necessary information. 38 C.F.R. § 20.202. In this regard, a substantive appeal should set out specific arguments relating to errors of fact or law made by the AOJ in reaching the determination being appealed. The Board will construe such arguments in a liberal matter for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Id. A substantive appeal must be filed within 60 days from the date that the AOJ mails the SOC to the claimant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 C.F.R. § 20.302(b)(1). The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.101(d). The AOJ may close a case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32), and a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d). In determining its jurisdiction, the Board must also be cognizant that the VA adjudicative system is non-adversarial and pro-claimant in nature wherein pro se filings are liberally and sympathetically construed. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); EF v. Derwinski, 1 Vet. App. 324 (1991). In this case, however, at the time that the pertinent SOC was mailed in October 2015, the Veteran was represented by an attorney and was not functioning in a pro se capacity. In the instant case, the AOJ issued a rating decision in August 2012 which granted service connection for tinnitus and assigned an initial 10 percent rating, granted service connection for bilateral hearing loss and assigned an initial noncompensable rating, denied service connection for residuals of a left ankle injury, and did not increase the noncompensable disability evaluation assigned for the Veteran’s service-connected residuals of old strain, left first MTP joint. In June 2013, the Veteran submitted a timely NOD as to the propriety of the assigned ratings and the denial of service connection. In November 2013, the AOJ issued a rating decision denying service connection for a heart condition, hypertension, diabetes mellitus, a bilateral hip condition, a back condition, and an acquired psychiatric condition. The Veteran then filed a timely NOD to these additional six issues in September 2014. Thereafter, the AOJ issued an SOC with an associated notification letter dated October 30, 2015, reflecting a mailing address as the Veteran’s address of record with notation of a copy sent to the Veteran’s attorney. There is no indication that this mailing was returned as undeliverable. A timely substantive appeal was not received from the Veteran following issuance of the SOC in October 2015. Instead, the Veteran’s attorney submitted a VA Form 9 in December 2016, more than 400 days after the date of mailing of the SOC, acknowledging that the appeal was untimely, but requesting that it be considered and arguing that “we never received this decision to be able to appeal it in the appropriate timeframe.” See VA Form 9, December 2016. Of note, this form lists the same mailing address for the Veteran as that used on the October 2015 SOC, verifying the correctness of said address. The Board finds that the October 2015 SOC was properly addressed and mailed to the Veteran’s last known address of record at that time (which continues to be the Veteran’s address of record) and the correct representative was copied on the document. Further, the claims file contains no returned mail or any other indication that the SOC was not properly delivered to either recipient apart from the contention in the December 2016 Form 9; however, “assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process.” Jones v. West, 12 Vet. App. 98, 102 (1998). In this respect, the presumption of regularity holds that government officials are presumed to have properly discharged their official duties correctly, fairly, in good faith, and in accordance with the law and governing regulations. See, e.g., Davis v. Brown, 7 Vet. App. 298, 300 (1994); Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption with regard to the mailing of the SOC in this case. Although the Board acknowledges the representative’s contentions, the Board highlights that there are no regulations that require VA to write out the representative’s address on the SOC (rather than just indicating that he was copied) and no regulations that require notifications to contain an official VA seal; such a specific notice is not a regulatory requirement. Thus, because the October 2015 SOC was mailed to the last known address of record for the Veteran and the mail was not returned, the Board finds that the notice was proper and tolling is not warranted. The Board also recognizes that the Court has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Thus, the Board may not raise a timeliness objection in a particular case where the appellant filed an untimely substantive appeal and the RO, nonetheless, treated a Veteran’s claim as timely appealed, certifying said issue to the Board. However, VA has not waived this requirement in this case and declines to do so at this time. Here, unlike in Percy, the AOJ notified the Veteran and his attorney in December 2016 that the untimely VA Form 9 would not be accepted as a substantive appeal as the time limit to continue the appeal had passed. As such, the Board finds that the issue of timeliness of the substantive appeal has not been waived at any time, either explicitly or implicitly. In sum, the October 2015 SOC was mailed to both the Veteran and his representative; the Veteran’s proper address was included on the SOC; and there is no evidence that the SOC was returned as undeliverable to either party. Despite the representative’s assertion that the SOC was unreceived by himself and the Veteran, there is no evidence to corroborate this assertion; rather, the presumption of regularity is unrebutted. Although the SOC did not explicitly include the representative’s address thereon, there is no statutory requirement that this information be provided on the actual SOC and no evidence that the document was not properly mailed to the representative at that time. Thus, the Board finds that the Veteran did not file a timely substantive appeal following the rating decisions of August 2012 and November 2013. 2. Entitlement to service connection for a back disorder, including degenerative disc disease as secondary to the Veteran’s service-connected left first metatarsophalangeal (MTP) joint disability. 3. Entitlement to service connection for a bilateral hip condition, to include as secondary to the Veteran’s service-connected left first MTP joint disability. 4. Entitlement to service connection for a left ankle disorder, to include as secondary to the Veteran’s service-connected left first MTP joint disability. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The RO’s May 2020 rating decision, which granted service connection for a back disorder, bilateral hip condition, and left ankle disorder, to include as secondary to the Veteran’s service-connected left first MTP joint disability, constitutes full grants of the benefits sought. The record contains no indication that the Veteran has disagreed with the effective date or disability ratings assigned thereto. As such, there is no case or controversy for the Board to adjudicate with respect to the original claims of entitlement to service connection. Consequently, the claims for service connection for a back disorder, a bilateral hip condition, and a left ankle disorder, to include as secondary to the Veteran’s service-connected left first MTP joint disability, must therefore be dismissed as moot. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.101; see also Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of “downstream” issues such as the compensation level assigned for the disability or the effective date of service connection). Service Connection The Veteran is seeking service connection for a psychiatric disorder on direct and secondary bases. The Board will limit its analysis to the theory of entitlement which yields a positive finding in this case. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 5. Entitlement to service connection for an acquired psychiatric disability, to include mood disorder as secondary to service-connected tinnitus. The Veteran’s service treatment records (STRs) separation examination did not note a diagnosis of any acquired psychological disorder. However, the Veteran noted complaints of “nerves” in his November 1971 Report of Medical History. The Veteran’s VA treatment records indicate that he has a current diagnosis of adjustment disorder with mixed anxiety and depressed mood. In March 2019, the Veteran was afforded a VA psychiatric examination related to his service connection claim. The VA psychiatrist stated that he had reviewed the Veteran’s STRs and the patient’s medical history. In a December 2019 addendum opinion, the VA examiner opined that it was likely that the Veteran’s adjustment disorder either developed or worsened as a result of the Veteran’s time in the military: Veteran is likely to have developed mental health issues while in the military. Records indicate the etiology of the mental health issues were psychosocial stressors related to finances and it is not clear if issues due to military service caused mental health issues. Therefore, Veteran’s mental health issues emerge for the first time during the military and this would predispose him (neurobiological) to future episodes of anxiety and possibly mood issues due to additional situational stressors. With each psychosocial stressor the reaction is more likely with less intense stressors, if treatment is not pursued at the time symptoms first emerged and until well enough improved. The Veteran’s symptoms progressed at the time of the November 2013 examination and it causes minimal impairment yet due to a lack of eradication of symptoms, Veteran would then be primed to exacerbation or more sensitive to clinically significant anxiety and possible co-occurring depression. Based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board finds that the requirements for direct service connection for an acquired psychiatric disorder have been satisfied. The Veteran has a diagnosis of an acquired psychiatric disorder, noted to include an adjustment disorder, and has been treated for that disability by VA. Additionally, the Veteran’s STRs show he began experiencing psychological symptoms, including anxiety and stress, while in-service. Further, the Veteran has consistently related his adjustment disorder symptoms, including his anxiety, to his period of active service. Finally, the December 2019 opinion, provided by a VA psychiatrist, has related the Veteran’s current adjustment disorder to his active duty service, stating that the disorder either originated in or was aggravated by his active duty military service. Given the medical evidence diagnosing a current psychiatric disability, considering the Veteran’s credible reports of experiencing anxiety during his active service, and in light of the medical evidence of a nexus between the Veteran’s current psychiatric symptomatology and the claimed in-service occurrences, the Board finds that the evidence shows the Veteran’s adjustment disorder with anxiety is related to active military service. The Board is aware of the prior August 2014 VA medical examination which did not relate the Veteran’s symptomology to his active duty service. However, the Board affords more probative weight to the opinion of the December 2019 VA psychiatrist, particularly as the Board previously held the August 2014 opinion to be inadequate. See June 2019 Board decision. As such, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection for the Veteran’s psychiatric disorder is warranted. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity resulting from service-connected disability; separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 6. Entitlement to a rating in excess of 10 percent from November 7, 2016, to December 27, 2019, and from 20 percent thereafter, for left first MTP joint disability. The Veteran contends that he is entitled to higher ratings for his left foot disability. In an April 2017 rating decision, the RO assigned a 10 percent disability rating, effective November 7, 2016. In a subsequent May 2020 rating decision, the RO granted a 20 percent disability rating, effective December 27, 2019. The Veteran’s current disability is rated under Diagnostic Code 5284. VA’s Rating Schedule allows a maximum rating of 30 percent under this diagnostic code for other foot injuries. Under DC 5284, the RO assessed the Veteran’s foot injury as moderate in nature, warranting a 10 percent evaluation. Moderately severe symptomatology would yield a 20 percent rating, and severe symptomatology would warrant the maximum evaluation of 30 percent. See 38 C.F.R. § 4.71a; DC 5284. Words such as “moderate,” “moderately severe,” and “severe” are not defined in the 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. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in reaching a rating decision. 38 C.F.R. §§ 4.2, 4.6. The Board notes, that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R.§§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § § 4.40 and 38 C.F.R. § § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Notably, pain, alone, does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § § 4.59. The application of 38 C.F.R. § § 4.59 is not limited to arthritis-related claims. See Burton v. Shinseki, 25 Vet. App. 1 (2011). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If 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. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. However, such an analysis is not warranted in the present case, as the Veteran’s left foot disability is rated in accordance with Diagnostic Code 5284, the criteria of which were not revised as part of the amended regulations. Entitlement to a rating in excess of 10 percent from November 7, 2016, to December 27, 2019. A March 2017 examination assessed the Veteran for reports of increased pain and inability to stand or walk due to his left foot disorder. The Veteran identified symptoms of pain, stiffness, fatigability, and lack of endurance. He did not identify swelling, heat, redness, weakness, or other symptoms. Flare ups were reported which occurred 1-2 times per month and prevented him from walking due to pain. The examiner noted evidence of pain. The examiner noted that the Veteran’s condition chronically compromises weight-bearing. The examiner further noted that the disability requires the use of a cane. The examiner noted that the Veteran does not have functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner also noted that Veteran’s left foot symptoms are moderate. The Veteran’s treatment records reflect findings consistent with the findings of the March 2017 VA examination. Treatment notes indicate that he had left MTP joint pain which limited his weight-bearing and ability to ambulate. However, he was noted to be able to walk short distances, to include walking his dog. See February 2017 treatment note. For this period on appeal, the Veteran was assigned a 10 percent rating for left first MTP joint disability, which contemplates the reported pain, tenderness, aching, throbbing, interference with weight-bearing, and interference with walking and standing. The medical evidence all reflects at most moderate interference with weight-bearing, standing or walking. His pain, tenderness, aching or other symptoms were at no point described by the Veteran or the medical examiners as moderately severe or severe. Even with the presence of additional symptoms such as stiffness, fatigability, and lack of endurance, there is no evidence that these symptoms contributed to such additional functional impairment as to constitute a moderately severe disability picture during the period on appeal. In short, there is no evidence of record indicating that the Veteran’s left first MTP joint disability was moderately severe or resulted in a moderately severe impairment. As such, the Board finds that the Veteran’s overall disability picture did not more nearly approximate the level of severity contemplated by a 20 percent rating for a moderately severe foot injury, and therefore an increased rating in excess of 10 percent is denied. 38 C.F.R. §§ 4.7, 4.71a, DC 5284. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to an initial rating in excess of 10 percent must be denied. Entitlement to a rating in excess of 20 percent from December 27, 2019, and thereafter. The December 2019 VA examination assessed the Veteran for reports of increased pain and inability to stand or walk due to his left foot disorder. The Veteran identified symptoms of pain, stiffness, fatigability, and lack of endurance. He did not identify swelling, heat, redness, weakness, or other symptoms. The examiner noted evidence of pain. The examiner noted that the Veteran’s condition chronically compromises weight-bearing. The examiner further noted that the disability requires the use of a cane. The examiner noted that the Veteran does not have functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner also noted that the Veteran’s left foot symptoms are moderately severe. The examiner noted that Veteran has functional loss or functional impairment of the foot. The examiner noted that the Veteran has less movement than normal and pain on weight-bearing. The examiner also noted that there is disturbance of locomotion and interference with standing. The Veteran reported that flare-ups impact the function of his foot. The Veteran further reported that pain, weakness, fatigability, or incoordination significantly limit his functional ability during flare-ups or when the foot is used repeatedly over a period of time. The examiner noted that the Veteran does not have functional impairment of an extremity such that no effective function remains other than that which would be equally well-served by an amputation with prosthesis. The Veteran’s current treatment records do not indicate any findings which would indicate severe impairment of the left first MTP joint or left foot. Upon review of the evidence, the Board finds that rating in excess of the 20 percent rating assigned is not warranted. At worst, the Veteran’s left foot injury was noted to be moderately severe by a medical expert. The current rating reflects the full nature and scope of the Veteran’s symptoms, including chronic pain accompanied by stiffness, fatigability, and lack of endurance. Such a disability picture does not equate severe impairment, as the Veteran remained capable of ambulating with an assistive device and did not report the inability to conduct the activities of daily living due to his disability. Moreover, the Veteran does not appear to require consistent treatment for his disorder. To warrant a higher rating, the Diagnostic Code requires a showing of severe symptoms. The December 2019 examiner noted pain and functional loss due to residuals of the Veteran’s left foot condition but determined that these findings resulted in moderately severe impairment. Such a disability picture is commensurate with the criteria for a 20 percent rating, as currently assigned. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to a rating in excess of 20 percent from December 27, 2019, and thereafter must be denied. 7. Entitlement to a compensable rating for bilateral sensorineural hearing loss. The Veteran disagrees with the assigned evaluation of zero percent, essentially contending that he should be awarded a higher disability evaluation for his bilateral sensorineural hearing loss. See, e.g., Notice of Disagreement, August 2017; Claim, November 2016. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, 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. Further, when the average 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, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). A March 2017 VA examination reveals that the Veteran reported his hearing loss interferes with all aspects of daily communication. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). On the authorized audiological evaluation in March 2017, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 40 60 65 LEFT 20 30 40 70 70 As calculated by the examiner, pure tone threshold averages were 46.25 for the right ear and 52.5 for the left ear. Speech audiometry revealed speech recognition ability of 94 percent bilaterally. Thus, applying the above results to Table VI, the findings yield a numeric designation of Level I for both ears. Entering the resulting bilateral numeric designation of Level I for each ear into 38 C.F.R. § 4.85, Table VII, results in a zero percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Based on the evidence above, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including interference with daily communication. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). In this case, this formula does not yield a higher rating for the Veteran’s level of hearing loss during the period on appeal. The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran’s main complaint is reduced hearing acuity and clarity, which is directly contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a compensable rating for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Date The effective date of an increased rating is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). In determining when an increase is “factually ascertainable,” VA should look to the record as a whole, including testimonial evidence and expert medical opinions, to determine when the increase took place. VAOPGCPREC 12-98 at 5. Further, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. 8. Entitlement to an effective date before November 7, 2016, for a 10 percent disability rating for strain of the left MTP joint. By way of procedural background, the Veteran filed a claim for an increased rating for strain of the left MTP joint on November 1, 2010. In an August 2012 rating decision, the RO assigned a noncompensable rating. In June 2013, the Veteran filed a Notice of Disagreement with the rating assigned in the August 2012 rating decision. The RO issued a Statement of the Case in October 2015; however, the Veteran did not file a timely substantive appeal, as discussed above. As such, the August 2012 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Thereafter, the Veteran filed a claim for an increased rating for his strain of the left MTP joint on November 7, 2016. An April 2017 rating decision increased the rating to 10 percent, effective November 7, 2016 (the date of the Veteran's claim for increase). The Veteran filed a Notice of Disagreement with the effective date assigned and the claim was subsequently appealed to the Board. See August 2017 VA Form 9. The record does not show that he filed a formal or informal increased rating claim for strain of the left MTP joint prior to his November 7, 2016 claim. Thus, the earliest effective date assignable in this case would be one year prior to the Veteran’s November 7, 2016, claim. The question then becomes whether an increase in the disability at issue was factually ascertainable during that period. However, the evidence of record does not provide a factually ascertainable basis to conclude that the Veteran’s service-connected strain of the left MTP joint increased in severity within the year before VA received the November 7, 2016, claim. The grant of the 10 percent rating was based on the March 2017 VA examination (obtained after the Veteran’s November 2016 claim). Further, VA and private treatment records dated one year prior to the November 7, 2016, do not show that it was factually ascertainable that the Veteran’s symptoms were moderately severe, as required for a 10 percent rating under DC 5284; at no time did a medical examiner classify the Veteran’s disability as moderately severe, nor did the Veteran offer testimony to this effect. In sum, it is not factually ascertainable that an increase in the Veteran’s disability occurred within one year prior to the date of the claim. Rather, the claim giving rise to the grant of benefits was received on November 7, 2016; the date entitlement arose corresponds with the March 2017 VA examination. Accordingly, the Veteran is already in receipt of an earlier effective date than that warranted under VA regulations. Therefore, the claim for an earlier effective date prior to November 7, 2016, for the assignment of a 10 percent rating for the Veteran’s strain of the left MTP joint disability is denied. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (38 U.S.C. § 5100(b)(2) requires that “an increase in a Veteran’s service-connected disability must have occurred during the year prior to the date of the Veteran’s claim in order to receive the benefit of an earlier effective date.”) In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 9. The petition to reopen the claim of service connection for a heart condition. 10. The petition to reopen the claim of service connection for hypertension. 11. The petition to reopen the claim of service connection for diabetes mellitus. The Veteran’s claims of entitlement to service connection for a heart condition, hypertension, and diabetes mellitus were last finally denied by rating decision in November 2013. This determination was based upon a decision that none of these conditions were shown to have occurred during active military service, during a relevant presumptive period thereafter, or otherwise be related to such service. The decision also found that the Veteran did not serve in the Republic of Vietnam or other area in which service connection may be presumed based upon exposure to certain herbicide agents. The Veteran did not perfect an appeal of the November 2013 rating decision and that rating decision became final. 38 C.F.R. §§ 20.302, 20.1103. Thus, new and material evidence is now required to reopen the claim. Relevant evidence of record at the time of the November 2013 decision included the Veteran’s service treatment records and VA treatment records from October 2008 through September 2013. Relevant evidence submitted after the November 2013 decision includes VA treatment records from November 2013 through February 2019, and duplicate copies of evidence previously considered. Neither the Veteran nor his attorney have submitted any specific argument as to the theory on which entitlement to service connection for a heart condition, hypertension, or diabetes mellitus is based or why the Veteran believes any of these conditions is attributable to his military service. Although the VA treatment records obtained from November 2013 through February 2019 are new, in that they were not previously considered in the November 2013 rating decision, they are not material evidence as they do not relate to an unestablished fact necessary to substantiate the claim, i.e. the relationship, if any, between the Veteran’s diagnosed heart condition, hypertension, or diabetes and his active military service. The Veteran has not submitted such evidence. In the absence of new and material evidence, the claims of service connection for a heart condition, hypertension, and diabetes mellitus are not reopened. 38 C.F.R. § 3.156(a). Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette, 28 Vet. App. at 369-370 (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). Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.