Citation Nr: 21032441 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-32 695 DATE: May 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for left great toe metatarsophalangeal (MTP) joint arthritis, status-post fusion, (hereafter left toe disability) is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's left great toe disability has been manifested by MTP joint arthritis, status-post fusion, hallux rigidus with left great toe and foot pain, swelling, and antalgic gait, worsened with prolonged standing or walking; the disability is not manifested by pes planus, pes cavus, weak foot, metatarsalgia, hallux valgus, or hammertoes deformity. 2. Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level III in the right ear and no worse than Level II in the left ear. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left great toe MTP joint arthritis, status-post fusion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276-5284. 2. The criteria for entitlement to a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1979 to April 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. In December 2019, the Board remanded the case for further development. There has been substantial compliance with the Board's prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). It is noted that, among other things, the Board remanded the appeal to allow the Veteran to authorize release of his private treatment records to VA. In accordance with the Board's remand directives, the originating agency afforded the Veteran an opportunity to authorize release of private treatment records to VA. However, the Veteran did not authorize the release of any non-VA treatment records to VA. The duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). To the extent that the Veteran believes compensation is warranted for left ankle disability secondary to his service-connected left great toe MTP joint arthritis, status-post fusion, he is advised that all claims for benefits must be submitted on required forms. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA's processes. A left ankle disability is not within the scope of this appeal of the initial rating assigned following the grant of service connection for left great toe MTP joint arthritis, status-post fusion. Evaluations Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.§ 1155; 38 C.F.R., Part 4. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to a rating in excess of 10 percent for left great toe disability. A May 2014 rating decision granted service connection for left great toe metatarsal-phalangeal (MTP) joint and assigned a 10 percent rating under Diagnostic Code (DC) 5279 (Metatarsalgia, anterior (Morton's disease), unilateral, or bilateral). This appeal arises from the Veteran's disagreement with the initial rating assigned. See NOD (October 2014). A November 2020 rating decision granted an effective date from October 15, 2012 for the grant of service connection for left toe disability. See Rating Decision (November 2020). The Veteran contends that a higher rating is warranted because he had multiple operations at his own expense; he has lost movement and limps; he cannot run or wear normal shoes; and it interfere with his employability because he cannot climb stairs, squat, or wear safety shoes; also he reported he can "no longer walk very far without pain." Id. The Board finds that the criteria for entitlement to a rating in excess of 10 percent for left great toe MTP joint arthritis, status-post fusion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, DCs 5276-5284. Disabilities of the foot are rated under Diagnostic Codes 5276 through 5284. 38 C.F.R. § 4.71a. Under Diagnostic Code 5279, metatarsalgia, anterior (Morton's disease), unilateral or bilateral, provides a single 10 percent ratingthe maximum rating. Thus, it is not possible to assign a higher schedular rating for left great toe MTP joint arthritis, status-post fusion under Diagnostic Code 5279. Additionally, the Board has conducted a thorough review of the evidence and finds that a higher rating is not warranted under another DC. Amputation of the great toe without removal of the metatarsal head is rated at 10 percent under DC 5171, which is the maximum schedular rating. Also, because there is no evidence of weak foot, claw foot, hammer toes, malunion or nonunion of the metatarsal bones, a rating under DCs 5277, 5278, 5282, and 5283 is not warranted. In addition, the maximum rating for hallux rigidus under DC 5281 is 10 percent and his symptoms of toe pain and loss of toe motion are contemplated already by the current 10 percent rating-thus a separate rating is not warranted. See 38 C.F.R. § 4.14. See also, Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Further, the Board has considered the application of DC 5284. It has been held that when a when a condition is specifically listed in the Schedule, it may not be rated by analogy under DC 5284. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). DC 5284 refers to "other" foot injuries and applies to foot disabilities for which there is not already a specific DC. It is appropriate to consider DC 5284 when the disability is related to the results of surgery. See Yancy v. McDonald, 27 Vet. App. 484, 493 (2016) (the plain meaning of the word "injury" limits the application of DC 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions). Thus, "[u]nder Copeland and Yancy, the Board is obligated to consider analogous DCs, including DC 5284, when rating unlisted conditions, despite the presence of listed conditions." Scott v. Wilkie, 920 F.3d 1375, 1379 (Fed. Cir. 2019). In this case, it does not appear that the Veteran has any unlisted service-connected disability of the left great toe; but rather, both the diagnoses of hallux rigidus and MTP joint arthritis are contemplated by the VA rating schedule. See 38 C.F.R. § 4.71a, 5003-5010, 5281. Given this, DC 5284 is not for application. However, even if it were for application, a higher rating under DC 5284 is not warranted. See e.g. Yancy, 27 Vet. App. at 491 (the plain meaning of the word "injury" limits the application of DC 5284 to disabilities resulting from actual injuries to the foot, as opposed to disabilities caused by, for example, degenerative conditions). Turning to the evidence of record, the evidence reflects that the Veteran has been diagnosed as hallux valgus and arthritis during the claim period. It further shows that, after discharge from service, the Veteran had a 5 total surgeries to his left great toe and denied any acute left great toe injury during service The lay evidence shows complaints of pain limiting certain activities. For example, an April 2014 VA foot examination reflects complaints of persistent pain in this toe with ambulation; pain preventing his running or walking more than two miles. A September 2017 VA podiatry treatment note documents complaints of tenderness to palpation and with range of motion to the interphalangeal joint of the left great toe. A January 2020 VA foot examination reflects complaints of constant pain in the left great toe and left foot radiating into the left ankle which caused difficulty walking, pain with prolonged standing, and an inability to wear normal shoes. April 2014 VA examination clinical findings were positive for hallux rigidus with severe symptoms, deemed to be the functional equivalent of amputation of the great toe; painful movement, less movement than normal, pain on weight-bearing, and swelling affecting the left foot. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the foot is used repeatedly over a period of time. An August 2017 VA treatment record reflects that the Veteran reported that he was establishing care with the VA due to increased difficulty with left foot pain, first metatarsal and MTP joint. By history, he had 5 left toe surgeries that included 2 joint replacements of the first MTP joint and finally joint fusion. He stated that he is only able to wear sandals because enclosed shoes pressed on his foot and increase his pain. He reported using about 6 Aleve pills a day for the pain and has been doing that for about 6 months. He had an antalgic gait on the left due to foot pain. A September 2017 VA podiatry treatment note reflects no tenderness to the area of the first MTP joint was; and fusion was clinically solid, but there was some tenderness over the hardware at the base of the first left metatarsal was observed. A January 2020 VA foot examination reflects left hallux rigidus with mild or moderate symptoms, including less movement than normal, disturbances of locomotion, and interference with standing. As to functional impairment, the April 2014 VA examination reports shows no functional impairment on the Veteran's ability to perform occupational tasks. Whereas the January 2020 VA examination report shows that the Veteran was a "Federal officer" and had lost 2-4 weeks work time in last 12 months due to "pain." Neither the 2014 nor 2020 VA examination indicated that there was functional impairment of the left foot such that no effective function remained other than that which would be equally well-served by an amputation with prosthesis. Neither the 2014 nor 2020 VA examination show that the Veteran required any assistive devices as a normal mode of locomotion. A January 2020 VA treatment note indicated that the Veteran had a normal gait; lived alone, performed both his household and yardwork activities; and drove to the VA clinic for his office visit. A July 2020 VA treatment note reflects that the Veteran denied walking and balance problems along with having had any falls. VA treatment record show no indication that the Veteran used any assistive device for locomotion. Having carefully considered the evidence of record, neither the lay nor the medical evidence warrants the assignment of a higher disability rating under DC 5284. Under DC 5284, a 10 percent rating is warranted for a moderate foot disability; a 20 percent rating is warranted for moderately severe foot disability; and a 30 percent rating is warranted for severe foot disability. Actual loss of use of the foot warrants a 40 percent rating. "Moderate" is "tending toward the mean or average amount or dimension." www.merriam-webster.com/dictionary/moderate. In contrast, "severe" is "of a great degree." www.merriam-webster.com/dictionary/ severe. In this case, the Veteran's left toe disability manifested by no more than "moderate" foot disability. He is competent to report symptoms of pain and flare-ups with prolonged standing or walking, and that he cannot run. However, given that his symptoms do not require use of any assistive device or keep him from performing household and yardwork activities, the evidence does not suggest more than moderate functional impairment due to his left toe disability. Therefore, a higher rating under DC 5284 is not warranted. The Board sympathizes with the Veteran's discomfort and functional impairment. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for a higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation under any potentially applicable schedular criteria, as explained and discussed above. The Board finds that there is no basis to "stage" the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). Indeed, although this appeal arises from the initial disability rating assigned from October 15, 2012, the Veteran has not provided copies of or authorized VA to obtain his private treatment records for private medical care obtained during that period of time prior to 2017 when he initiated VA medical care for his left toe disability. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. See also, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a compensable rating for bilateral hearing loss is denied. The Veteran seeks entitlement to a compensable rating for his service-connected hearing loss. The Veteran has reported that his hearing loss makes it difficult to hear conversations, and that he has to ask others to speak loudly or repeat themselves. He has also reported difficulty hearing a television or cell phone. 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). An April 2104 VA examination reveals that the Veteran reported hearing loss in both ears since military service. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: April 26, 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 25 60 90 49 96 LEFT 15 20 65 90 48 96 Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level I in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level I for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. A December 2019 VA examination reveals that the Veteran reported that he needs increased volume to understand television and conversations and that he has to ask others to repeat themselves. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 31, 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 35 35 80 90 60 90 LEFT 30 35 75 95 59 92 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. Available VA and private medical records did not include any audiological evaluations. 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 the Veteran's reports that he has difficulty hearing conversations with other and the television. 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). 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 what is 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). REASONS FOR REMAND 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. At his December 2019 hearing and in his October 2014 notice of disagreement, the Veteran has reported that he is unable to work because pain in his left foot from his service connected left great toes disability prevents him from standing or walking for an extended period of time. Therefore, the Board finds that a claim for TDIU has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Additional development is necessary to address this matter to include completion of a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, by the Veteran. It is noted that, as eligibility for a TDIU rating is contingent on the Veteran's ability to obtain and maintain substantially gainful employment, clarification of the Veteran's employment and educational history is required. Therefore, the matter is remanded for development and adjudication in the first instance by the originating agency. The matters are REMANDED for the following action: 1. Ask the Veteran to fully complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to allow VA to obtain relevant employment information. 2. Send a letter to the Veteran, with a VA Form 21-4192, Request for Employment Information, requesting that the Veteran complete the form and provide any additional information to substantiate a claim of entitlement to TDIU. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Request the Veteran's tax returns to confirm his claimed unemployment during the period from October 2012 to present. 4. Conduct any other development deemed necessary and then adjudicate the issue of entitlement to TDIU. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.