Citation Nr: 22017343 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-04 258 DATE: March 24, 2022 ORDER Entitlement to a compensable disability rating for service-connected bilateral hearing loss prior to October 6, 2021 is denied. Entitlement to a disability rating in excess of 40 percent for service-connected bilateral hearing loss from October 6, 2021 is denied. Entitlement to a 30 percent disability rating, but no higher, for service-connected residuals of right foot injury with great and second toenail malformation from June 24, 2015 is granted. Entitlement to a 10 percent disability rating, but no higher, for metatarsalgia with osteoarthritis of the right foot from June 24, 2015 is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from June 24, 2015 is granted. FINDINGS OF FACT 1. Prior to October 6, 2021, the Veteran's bilateral hearing loss was productive of no worse than Level II hearing impairment in the right ear and Level III hearing impairment in the left ear. 2. From October 6, 2021, the Veteran's bilateral hearing loss was productive of no worse than Level VII hearing impairment in the right ear and Level VII hearing impairment in the left ear. 3. From June 24, 2015, the Veteran's residuals of right foot injury with great and second toenail malformation has been manifested by severe pain, numbness, and flare ups that interfere with his ability to stand and ambulate. 4. From June 24, 2015, the Veteran's metatarsalgia with osteoarthritis of the right foot has been manifested by symptoms distinct from his other right foot disabilities. 5. From June 24, 2015, the Veteran's service-connected disabilities precluded him from being able to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to October 6, 2021, the criteria for a compensable disability rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. 2. From October 6, 2021, the criteria for a disability rating in excess of 40 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.85, DC 6100. 3. The criteria for a disability rating of 30 percent, but no higher, from June 24, 2015 for residuals of right foot injury with great and second toenail malformation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5284. 4. The criteria for a disability rating of 10 percent, but no higher, from June 24, 2015 for metatarsalgia with osteoarthritis of the right foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5279. 5. The criteria for entitlement to a TDIU are met from June 24, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to October 1968. Service in the Republic of Vietnam is indicated by the record. He is the recipient of the Bronze Star Medal, among other commendations. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the noncompensable evaluation of bilateral hearing loss and increased the disability rating for residuals of an injury to the right foot with great and second toenail malformation to 20 percent, effective June 24, 2015. The Veteran filed a notice of disagreement (NOD) in August 2015 and a statement of the case (SOC) was issued in December 2016. He perfected a timely appeal in January 2017. In November 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a January 2020 Board decision, the increased rating claims were remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a rating decision dated August 2020, the RO increased the assigned rating for residuals of right foot injury with great and second toenail malformation to 30 percent from January 28, 2020 and assigned a separate 10 percent rating for metatarsalgia of the right foot with osteoarthritis from January 28, 2020. The Veteran has not expressed satisfaction with the increased disability rating; that matter thus remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). Moreover, the Board finds that the separate metatarsalgia rating for the right foot is part and parcel of the increased rating claim on appeal; therefore, the Board will also consider that claim herein. A supplemental statement of the case (SSOC) was issued in August 2020. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. In a February 2022 rating decision, the RO increased the assigned rating for bilateral hearing loss to 40 percent from October 6, 2021. The Veteran has not expressed satisfaction with the increased disability rating and, as such, that matter also remains in appellate status. See AB, supra. The February 2022 rating decision additionally granted entitlement to a TDIU from October 6, 2021. However, the Board notes that the matter of entitlement to a TDIU has been raised as part and parcel of the Veteran's claims of entitlement to increased ratings for bilateral hearing loss and right foot disabilities pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board will therefore herein consider entitlement to a TDIU prior to October 6, 2021 and has enumerated the issue above. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Following the issuance of the August 2020 SSOC, VA examination and treatment records were added to the Veteran's VA claims file. In response to a December 2021 letter from the Board, the Veteran submitted a written waiver of local consideration of this evidence in January 2022. This waiver is contained in the VA claims file. See 38 C.F.R. §§ 19.9, 20.1304(c). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods as to the pending claims. In all cases, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Board has considered all evidence of record as it bears on the issue before it. See 38 U.S.C. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). Although the Board has an obligation to provide reasons and bases supporting these decisions, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal. 1. Entitlement to a compensable disability rating prior to October 6, 2021 and a disability rating in excess of 40 percent thereafter for service-connected bilateral hearing loss. As indicated above, the Veteran's service-connected bilateral hearing loss is assigned a noncompensable disability rating prior to October 6, 2021 and a 40 percent rating thereafter. The Veteran asserts entitlement to higher disabilities ratings throughout the appeal period. See the Board hearing transcript dated November 2019. As will be explained below, the resolution of this issue involves determining the levels of hearing acuity. Impairment of auditory acuity (hearing loss) is evaluated pursuant to the provisions set forth at 38 C.F.R. § 4.85. Under that regulation, an examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. Examinations are to be conducted without the use of hearing aids. 38 C.F.R. § 4.85(a). To evaluate the degree of disability from defective hearing, the Rating Schedule establishes 11 auditory acuity levels from Level I, for essentially normal acuity, through Level XI, for profound deafness. These are assigned based on a combination of the percent of speech discrimination and the pure tone threshold average, as contained in a series of tables within the regulations. 38 C.F.R. § 4.85(b). The pure tone threshold average is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz (Hz), divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIA. 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 poorer hearing. The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e). In cases where impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of 38 C.F.R. § 3.383. 38 C.F.R. § 4.85(f). The regulatory provisions also provide two additional circumstances under which alternative tables can be employed. One is where the pure tone thresholds of the frequencies of 1000, 2000, 3000, and 4000 Hz are 55 decibels or greater. The second is where pure tone thresholds are 30 decibels or less at frequencies of 1000 Hz and below, and are 70 decibels or more at 2000 Hz. See 38 C.F.R. § 4.86. a. Prior to October 6, 2021. The Veteran filed a claim of entitlement to an increased disability rating for bilateral hearing loss in June 2015. The Veteran was afforded a VA audiology examination in July 2015 at which time the examiner noted the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 35 40 70 75 55 LEFT 45 45 70 85 61 Average pure tone threshold was 55 decibels in the right ear with speech recognition ability of 94 percent. Average pure tone threshold was 61 decibels in the left ear with speech recognition ability of 90 percent. The examiner stated that the Veteran's bilateral hearing loss does impact the ordinary conditions of his daily life, including his ability to work; specifically, "[w]ithout my hearing aids, I can't hear conversations without really listening. Even with my hearing aids I have a problem in a group setting." Such examination findings translate to level I hearing in the right ear and level III hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable (zero percent) rating. Another VA audiology examination was conducted in November 2017. The examiner documented the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 45 45 70 75 58.75 LEFT 45 50 70 80 61.25 Average pure tone threshold was 58.75 decibels in the right ear with speech recognition ability of 92 percent. Average pure tone threshold was 61.25 decibels in the left ear with speech recognition ability of 84 percent. The examiner stated that the Veteran's bilateral hearing loss does impact the ordinary conditions of his daily life, including his ability to work. The Veteran explained, "I can't hear my granddaughter, even when she is right next to me." He further stated, "I wear hearing aids and they help sometimes, but I still ask people to repeat themselves." The examiner indicated that the Veteran is retired and has reported difficulty hearing with and without his hearing aids. The examiner stated, "[t]he Veteran has mild to profound sensorineural hearing loss with word recognition abilities that would be considered disability by VA standards. The Veteran has hearing loss that is more severe than in the higher frequencies, frequencies that are most important for speech clarity." The examiner continued, "[e]ven when speech is appropriately amplified, it would be expected that the Veteran would not completely understand everything that is said to him." Such examination findings translate to level II hearing in the right ear and level III hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable (zero percent) rating. A VA audiology note dated in May 2018 noted the Veteran's report of difficulty understanding his wife, even with hearing aids. The Veteran described the impact of his hearing loss on his daily life: "People talk to me sometimes and I don't have a clue they are talking to me; I didn't hear them. On the phone, even with the aids and with the phone all the way up, I still have to have them repeat." The VA treatment provider indicated that the Veteran's MD CNC speech recognition scores were 96 percent, bilaterally. A November 2019 private audiogram was submitted by the Veteran, which documented the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 60 70 85 85 75 LEFT 65 70 75 80 72.5 However, as noted in the January 2020 Board Remand, the November 2019 private audiogram does not indicate that speech recognition scores were obtained using the Maryland CNC test, as required by 38 C.F.R. § 4.85(a). A remand for clarification of this private audiogram is not warranted because such is required only when "a private medical report is the only evidence on a material issue, and material medical evidence can no longer be obtained as to that issue, yet clarification of a relevant, objective fact would render the private medical report competent for the assignment of weight." Carter v. Shinseki, 26 Vet. App. 534, 545 (2014), vacated on other grounds by Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015) (citing Savage v. Shinseki, 24 Vet. App. 259, 267-70 (2011)); Savage, 24 Vet. App. at 270 (specifically limiting this duty to situations where "the missing information is relevant, factual, and objective-that is, not a matter of opinion" but also noting that, when it is applicable, the duty to clarify "includes medical examination reports of all kinds"). In this matter, there is other medical evidence for the period herein under consideration, which is material as to the question of entitlement to a higher disability rating for service-connected bilateral hearing loss. Pursuant to the January 2020 Board Remand, the Veteran was afforded an additional VA audiology examination in January 2020. The examiner documented the following pure tone thresholds: HERTZ 1000 2000 3000 4000 Average RIGHT 45 60 70 70 61.25 LEFT 50 60 70 80 65 Average pure tone threshold was 61.25 decibels in the right ear with speech recognition ability of 94 percent. Average pure tone threshold was 65 decibels in the left ear with speech recognition ability of 94 percent. The examiner stated that the Veteran's bilateral hearing loss does impact the ordinary conditions of his daily life, including his ability to work; specifically, the Veteran misses "out on conversation because of an inability to hear correctly." Such examination findings translate to level I hearing in the right ear and level III hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a noncompensable (zero percent) rating. Accordingly, audiometric testing conducted for VA compensation purposes indicates that a compensable rating is not warranted prior to October 6, 2021 pursuant to DC 6100. 38 C.F.R. § 4.85. There is no audiological evidence of record to support a compensable disability rating for the Veteran's bilateral hearing loss disability prior to October 6, 2021. The Board therefore concludes that the evidence substantially weighs against the claim and it is denied to that extent. 38 U.S.C. § 5107(b); see also Lynch v. McDonough, No. 2020-2067 (Fed. Cir. Dec. 17, 2021). b. From October 6, 2021. A November 2021 VA audiology examination documented the pure tone thresholds indicated below: HERTZ 1000 2000 3000 4000 Average RIGHT 55 65 75 75 67.5 LEFT 55 65 70 75 66.25 Average pure tone threshold was 67.5 decibels in the right ear with speech recognition ability of 60 percent. Average pure tone threshold was 66.25 decibels in the left ear with speech recognition ability of 62 percent. The examiner stated that the Veteran's bilateral hearing loss does impact his ordinary conditions of daily life including his ability to work. The Veteran reported that he cannot "hear words clearly even with hearing aids." The examiner opined, "[w]ith the severity of hearing and speech recognition ability, effective communication would be problematic." He further noted that the "Veteran would likely have difficulty understand conversations in groups and noise along with television and telephone use. The Veteran would struggle with overall conversations and would likely need to rely on facial and lip reading with the use of hearing aids." Such examination findings translate to level VII hearing in the right ear and level VII hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Applying Table VII, DC 6100, this equates to a 40 percent disability rating. Since the Veteran's hearing loss in the right and left ears represents an exceptional pattern of hearing loss as defined by 38 C.F.R. § 4.86(a), Table VIa may be used if it reflects a higher level of hearing loss. However, the Board notes that, pursuant to Table VIa, the findings translate to level IV hearing, bilaterally. Applying Table VII, DC 6100, this equates to a 10 percent rating, but no higher; as such, it does not avail the Veteran. Accordingly, the Board finds that there is no probative audiological evidence of record to support a rating for the Veteran's bilateral hearing loss disability in excess of 40 percent from October 6, 2021. The medical evidence demonstrates that the Veteran's bilateral hearing loss warranted a 40 percent rating, but no higher, pursuant to DC 6100. 38 C.F.R. § 4.85. There is no audiological evidence of record to support a disability rating in excess of 40 percent for the Veteran's bilateral hearing loss disability from October 6, 2021. The Board therefore concludes that the evidence substantially weighs against the claim and it is denied. 38 U.S.C. § 5107(b); see also Lynch, supra. c. Other considerations During all periods on appeal, the Board in no way discounts the difficulties that the Veteran experiences as a result of his service-connected bilateral hearing loss disability. In this regard, it must be emphasized that the disability ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designation assigned after audiometry results are obtained. Hence, the Board must base its determination on the results of the pertinent and valid audiology studies. See Lendenmann, 3. Vet. App. at 345. In other words, the Board is bound by law to apply VA's rating schedule based on the Veteran's audiometry results. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under these circumstances, the Board finds that the record presents no basis for assignment of higher initial ratings. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. The Board finds that the rating criteria contemplate the Veteran's bilateral hearing loss disability. His hearing loss is manifested by decreased hearing acuity. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, including his difficulty hearing and understanding speech. The Board notes that this conclusion is consistent with the Court's holding in Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) ("[W]hen 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"). The Board further finds that other than difficulty hearing or understanding speech, the record on appeal contains no evidence of other symptoms attributable to the service-connected hearing loss, such as dizziness, vertigo, or ear pain, not contemplated by the rating criteria. Because the rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular noncompensable evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence does not show anything unique or unusual about the Veteran's bilateral hearing loss that would render the schedular criteria inadequate. 2. Entitlement to a disability rating in excess of 20 percent prior to January 28, 2020 and 30 percent thereafter for service-connected residuals of right foot injury with great and second toenail malformation. 3. Entitlement to a disability rating in excess of 10 percent from January 28, 2020 for service-connected metatarsalgia with osteoarthritis of the right foot. Historically, the Veteran was service-connected for residuals of a right foot injury with great and second toenail malformation in a September 2010 rating decision, which assigned a 10 percent disabling rating pursuant to Diagnostic Codes 5284-7804. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.2. The rating decision indicated that the disability would be rated as analogous to a painful scar under DC 7804. The Veteran filed an increased rating claim in June 2015. In an August 2015 rating decision, the RO increased the assigned rating to 20 percent, effective from June 24, 2015. The Veteran disagreed with the assigned disability rating and this appeal follows. In an August 2020 rating decision, the RO increased the assigned rating for residuals of right foot injury with great and second toenail malformation to 30 percent from January 28, 2020 and indicated that the disability should be evaluated pursuant to DC 5284. The rating decision also assigned a separate 10 percent rating for metatarsalgia with osteoarthritis of the right foot from January 28, 2020 under DC 5279. For the reasons set forth below, the Board finds that a disability rating of 30 percent, but no higher, for residuals of right foot injury with great and second toenail malformation is warranted from June 24, 2015, the date of the increased rating claim. The Board additionally finds that a separate 10 percent disability rating, but no higher, is warranted for metatarsalgia with osteoarthritis of the right foot from June 24, 2015. As described above, the Board recognizes that, prior to the January 28, 2020, the Veteran's residuals of right foot injury with great and second toenail malformation were rated under DC 7804. The Board notes that VA amended the criteria for rating skin disabilities during the claim period, effective from August 13, 2018. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule 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." The Veteran's claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore, the Board will consider both the old and new criteria and apply the more favorable criteria. Under both the old and the revised version of DC 7805, any disabling effects of scars not otherwise ratable under the other diagnostic codes pertaining to scars are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805 (in effect prior to and since August 13, 2018). In order to warrant a compensable rating under the old version of the other appropriate diagnostic codes, a scar would need to involve the head, face or neck and have at least one characteristic of disfigurement (DC 7800); be deep and nonlinear and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); be superficial and nonlinear and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); or be unstable or painful (DC 7804). 38 C.F.R. § 4.118, DCs 7800-7804 (in effect prior to August 13, 2018). In order to warrant a compensable rating under the new version of the other appropriate rating criteria, a scar would need to involve the head, face or neck and have at least one characteristic of disfigurement (DC 7800); be associated with underlying soft tissue damage and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); not be associated with underlying soft tissue damage, but affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); or be unstable or painful (DC 7804). 38 C.F.R. § 4.118; DCs 7800-7804 (in effect since August 13, 2018). As for unstable or painful scars, the following ratings apply under both the old and the revised version of DC 7804: a 10 percent rating is warranted one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804 (in effect prior to and since August 13, 2018). As indicated above, the Veteran's residuals of right foot injury with great and second toenail malformation are also rated under DC 5284 (foot injuries, other). 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). However, neither DC 5284 nor DC 5279 were changed by the revised musculoskeletal rating criteria. Under DC 5284, a 10 percent evaluation is assigned for foot injuries resulting in a moderate disability; a 20 percent evaluation is assigned for foot injuries resulting in a moderately severe disability; and a 30 percent evaluation is assigned for foot injuries resulting in a severe disability. 38 C.F.R. § 4.71a, DC 5284. The Note following these criteria indicates that disability with actual loss of use of the foot should be rated 40 percent disabling. Id. The rating criteria do not define "moderate" or "severe." However, according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "moderate" means limited in scope or effect; "severe" means very painful or harmful or of a great degree. Under DC 5279, metatarsalgia, anterior (Morton's disease) unilateral or bilateral is assigned a 10 percent disability rating. 38 C.F.R. § 4.71a, DC 5279. As described above, the Veteran filed a claim of entitlement to an increased rating for his service-connected residuals of right foot injury with great and second toenail malformation in June 2015. VA treatment records dated in August 2014 indicated that the Veteran was prescribed a diabetic shoe in order to help relieve his right foot pain. An October 2014 podiatry treatment record documented thickening of the toenail plates with subungual debris and crumbly toenails. The Veteran was noted to have moderate to severe foot pain as well as great toe, second, and third toe numbness, which has been worsening over the past month. VA treatment records dated in December 2014 documented limitation of motion at the first metatarsophalangeal joint (MPJ) of the right foot. The Veteran was afforded a VA scars examination in July 2015 at which time the examiner indicated that the Veteran had a deformity of the right foot measuring 0.5 mm by 0.3 mm manifesting as toenail angulation. The Veteran reported daily pain of 7/10 in each area of the nail. The examiner noted the Veteran's report that the edges of the affected nail are brittle, they turn black and blue, and are painful if new shoes or boots are worn. The Veteran indicated that "he used to walk over his land each day, but does not do that anymore because he says he can't get a comfortable pair of shoes lately." The examiner described the brittle toenail impairment as equating to two painful and unstable scars. The examiner indicated that a May 2009 x-ray of the right foot revealed ventral calcaneal spurs. The examiner reported that the Veteran's right foot disability does not impact his ability to work; specifically, the "[V]eteran retired in 2004 . . . as a lineman; [t]hat involved physical labor." VA treatment records dated in October 2015 documented a diagnosis of metatarsalgia of the right foot. The Veteran's VA treatment provider indicated that "nerve entrapment cannot be ruled out." The treatment provider additionally diagnosed hallux limitus of the right foot. VA treatment records dated in December 2015 indicated that the Veteran "has continual pain and numbness in his right foot." Increased right foot pain was documented in June 2016 and October 2016. The Veteran was afforded a VA foot examination in November 2017 at which time the examiner confirmed diagnoses of right metatarsalgia, right foot injury, and mid right foot osteoarthritis status-post injury. The Veteran described his right foot pain as 6-7/10 in severity. He indicated that the pain is constant and "feels like a stone" on the bottom of his foot. He endorsed flare-ups, which are manifested by significantly worse pain when ambulating or weight-bearing. The Veteran described the following overall functional impairment: "limits ability to work, using a golf cart at times for transport due to discomfort." The examiner indicated that the metatarsalgia is manifested by sharp pain at 6-7/10 with ambulation; at rest there is pain at the head of the second metatarsal. Physical examination of the Veteran revealed thickened toenails of the right big toe and right second toe; the examiner indicated that less than 5 percent of the surface area was not exposed. The examiner characterized the Veteran's right foot disability as of moderate severity. The Veteran's right foot disability chronically compromises weight-bearing. The Veteran reported that a VA podiatrist provided footwear with gym shoe Velcro straps, which has resulted in minimal symptom improvement. The Veteran exhibited pain on physical examination, which contributed to functional loss. He also had pain on movement, as well as pain on weight-bearing and nonweight-bearing. Pain significantly limits his functional ability during flare-ups or when the foot is used repeatedly over a period of time. The examiner stated, "[p]ain is worse with weight-bearing/walking and improved on nonweight-bearing. Using golf cart when hunting due to pain with ambulation." The examiner indicated that the Veteran's disability impacts his ability to work; specifically, "[t]he functional impact of each condition is pain with ambulation requiring rest, nonweight-bearing for improvement." The examiner further explained that the Veteran "develops pain while standing/ambulating which significantly limits his ability to be on his feet more than 15 minutes without significant pain/discomfort." The Veteran was afforded a VA skin examination in November 2017. The examiner confirmed a diagnosis of status-post right foot injury with great and second toenail malformation. The Veteran reported, "[t]he condition has worsening feeling pain and burning. Tends to walk on the lateral aspect of right foot due to discomfort medically." The examiner indicated that the Veteran did not experienced debilitating episodes due to his right foot disability. The examiner further reported that the Veteran's right foot disability is not treated with oral or topical medications in the last 12 months. The examiner determined that the Veteran's right foot disability does impact his ability to work; specifically, he "[t]ends to walk on the lateral aspect of right foot due to discomfort medially." The examiner additionally explained that metatarsalgia is a progression of the previous diagnosis. The examiner reported that the Veteran has chronic pain/metatarsalgia at the head of the second metatarsal, as well as thickened toenails at the right big and second toes with less than five percent of the surface area is not exposed. In a December 2018 statement, the Veteran indicated that he feels like his first three toes of his right foot "just aren't there and when I flex them, they hurt and when I'm walking, it feels like I'm stepping on a stone." At the November 2019 Board hearing, the Veteran indicated that his right foot hurts all of the time and feels like a pebble in his shoe. He stated that his pain is moderate to severe, and becomes severe during flare-ups. He additionally reported numbness in the right foot. Pursuant to the January 2020 Board Remand, the Veteran was afforded a VA scars examination in January 2020. The examiner reported that the Veteran had no scars. The Veteran stated that his right foot still hurts and he experiences pain underneath his toes, mainly the great and second toes. The Veteran was also afforded a VA foot examination in January 2020, at which time the examiner confirmed continuing diagnoses of metatarsalgia, as well as mild osteoarthritis of the mid foot. The examiner noted the Veteran's report of severe right foot pain. The Veteran endorsed severe flare-ups of right foot pain that occur daily and last several minutes after he sits down. The Veteran's right foot flare-ups are precipitated by prolonged standing and walking, and are alleviated by Advil. The Veteran's functional impairment is described as "difficulty and pain on prolonged standing (greater than one hour) and walking (greater than one mil). The examiner characterized the Veteran's right foot disability as 'severe.' The examiner noted that the foot disability chronically compromises the Veteran's weight-bearing and requires the use of shoe modifications. Pain was noted on physical examination, which contributed to functional loss. There pain with weight-bearing, disturbance of locomotion, and interference with standing. The examiner indicated that pain, weakness, fatigability, or incoordination significantly limit the Veteran's functional ability during periods of flare-ups or when the foot is used repeatedly over a period of time. There was tenderness on the ball of the Veteran's right foot. In a separate January 2020 VA medical opinion, the examiner noted that "the Veteran continues to have pain in his right foot including his toes, toenails, and ball of his right foot. He experiences flare-ups daily. Pain is described as severe and sharp. He takes Advil and rest[s] the foot to relieve the pain." VA treatment records dated in April 2021 indicated that the Veteran's "pain on plantar aspect of right foot, proximal to second toe, has become constant." A May 2021 VA podiatry note documented the Veteran's complaints of sharp burning, tingling, and numbness in his distal right forefoot behind the second digit. The Veteran described throbbing pain on walking and weight-bearing. His right dorsalis and pedis pulses were 2/4. There was tenderness to palpation of the right second metatarsal space on medial lateral compression of the right metatarsal heads. The nails were noted to be pain-free. The Veteran's treatment provider determined that the Veteran had neuroma of the right second interspace pain in the right foot. The Veteran was afforded a VA scars examination in October 2021. He was noted to have right foot great toe and second toe scars, which were not painful or unstable. The first scar was measured as 1 x 0.5 cm., and the second scar was 0.5 x 0.5 cm. The scars caused underlying tissue damage affecting a total area of 0.75 square centimeters. The examiner indicated that the scars did not affect the Veteran's ability to work. A VA skin examination was conducted in October 2021 at which time the examiner noted the Veteran's report of pain and numbness in his right foot. He treats his pain with Aleve. The examiner indicated that the Veteran's right foot disability does impact his ability to work; specifically, "[p]resence of pain, stiffness, and limited range of motion, hence lack of endurance to ambulate or stand due to pain." The examiner indicated that the Veteran's "underlying injury to the right feet causes pain, limited range of motion, stiffness, [and] lack of endurance with ambulation or prolonged standing." The Veteran was additionally afforded a VA foot examination in October 2021. The examiner confirmed diagnoses of metatarsalgia and trauma to the right foot big toe and second toe, as well as mid right foot osteoarthritis, status-post injuries. The examiner noted that the Veteran "continued to have sharp pain in his right foot including his toes, toenails, and ball of right foot." The Veteran endorsed daily flare-ups with a duration of several hours, characterized by sharp pain, numbness, and limited range of motion. Flare-ups are precipitated by ambulation and prolonged standing and alleviated by rest, ice, and warm application. The examiner characterized the flare-ups as severe due to limited range of motion, difficult ambulation, and inflammation. The examiner indicated that the Veteran's functional impairment is manifested by "[p]resence of episodic inflammation, stiffness, and sharp pain with numbness." The examiner indicated that his right foot disability is severe. The examiner indicated, "[p]resence of limited range of motion of the right foot of the great and second toes accompanied with toenail malformation which caused pain with ambulation or with range of motion." The Veteran's right foot disability chronically compromises weight-bearing. Physical examination revealed pain that contributed to functional loss, as well as less movement than normal, weakened movement, swelling, interference with sitting and standing, pain, weakness, and lack of endurance. The examiner indicated that the underlying osteoarthritis causes limited range of motion, stiffness, swelling, and lack of endurance, increased pain, lack of prolonged standing. The examiner stated that pain, fatigability, weakness, lack of endurance, or incoordination significantly limit functional ability during flare-ups and/or after repeated use over time. There was pain with passive and active motion, as well as with weight-bearing and nonweight-bearing. The examiner stated, "[p]resence of injury of the great toe cause limited range of motion, and underlying osteoarthritis lead to lack of endurance with ambulation and pain." The examiner reported that the Veteran's right foot disability does impact his ability to work; specifically, "[u]nderlying pain, stiffness, limited range of motion which impact standing/ambulating, poor tolerance with ambulation for a long distance or prolong[ed] standing." With regard to the service-connected residuals of right foot injury with great and second toenail malformation, the Veteran is currently assigned a 20 percent disability rating under DC 7804 (scars, unstable or painful) prior to January 28, 2020 and a 30 percent rating from January 28, 2020 under DC 5284 (foot injuries, other). The Board initially notes that a disability rating in excess of 20 percent is not warranted under DC 7804, as the evidence does not demonstrate that the Veteran's residuals of right foot injury with great and second toenail malformation is manifested by five or more scars that are unstable or painful. Moreover, the evidence of record does not show that the Veteran's toenail malformation has an area that of at least 72 square inches, so as to warrant a 30 percent rating under DC 7801. Considering the evidence of record detailing the Veteran's symptoms and pathology, as set forth in pertinent part above, the Board finds that the Veteran's residuals of right foot injury with great and second toenail malformation are more appropriately rated under DC 5284 throughout the appeal period. Under these criteria, the Board finds the Veteran's residual symptoms from his in-service injury, including the toenail malformations, has manifested as a severe disability during the period on appeal, producing pain, difficulty with weight bearing and limited range of motion, as well as flare-ups of symptoms causing impairment of ambulation and prolonged standing. As such, the Board finds that the disability should be rated under DC 5284 and that a 30 percent rating is warranted from June 24, 2015, the date of the increased rating claim. 38 C.F.R. §§ 4.3, 4.71a, DC 5284. This is the maximum rating available for injuries of the foot, absent actual loss of use of the foot, which has not been shown or alleged. Moreover, as the Veteran is still able to ambulate and bear weight on his right foot, the Board finds that his right foot symptoms do not more nearly approximate loss of use of the right foot. As such, a disability rating in excess of 30 percent is not warranted at any time during the appeal period. As indicated above, the Veteran has been assigned a separate 10 percent disability rating for metatarsalgia of the right foot with osteoarthritis from January 28, 2020 pursuant to 38 C.F.R. § 4.71a, DC 5279. Based upon the evidence set forth above, the Board finds that the separate 10 percent disability rating for metatarsalgia of the right foot is warranted from the date of the increased rating claim, June 24, 2015. As described above, the evidence documents a diagnosis of metatarsalgia throughout the appeal period. See the VA treatment records dated October 2015, the VA examination report dated November 2017, and the VA examination report dated January 2020. Notably, the October 2021 VA examiner clarified that the Veteran's underlying metatarsalgia with osteoarthritis manifested in lack of endurance, in addition to pain in the mid foot. Pursuant to 38 C.F.R. § 4.71a, 10 percent is the maximum rating for this condition and may be assigned whenever metatarsalgia is present. See 38 C.F.R. § 4.71a, DC 5279. As the record reflects that the Veteran has unilateral metatarsalgia with manifestations distinct from those associated with his service-connected residuals of right foot injury with great and second toenail malformation, a 10 percent rating pursuant to DC 5279 is warranted from June 24, 2015, the date of the increased rating claim. The Board notes that a separate disability rating is not warranted for osteoarthritis under DC 5003 as this would result in duplicate compensation for the same symptoms in violation of the anti-pyramiding provisions of 38 C.F.R. § 4.14, which directs that evaluation of the 'same disability' or the 'same manifestation' under various diagnoses is to be avoided. In sum, the Board has considered the entire record, including the Veteran's reported symptomatology and the objective clinical evidence. For the reasons set forth above, the Board finds that a 30 percent disability rating, but no higher, is warranted for residuals of right foot injury with great and second toenail malformation from June 24, 2015, the date of the increased rating claim. The Board additionally finds that a separate 10 percent rating is also warranted for metatarsalgia with osteoarthritis of the right foot from June 24, 2015. 4. Entitlement to a TDIU prior to October 26, 2021. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As indicated above, the Veteran has asserted entitlement to a TDIU. See, e.g., the Veteran's TDIU claims dated November 2017 and October 2021. The Veteran raised entitlement to a TDIU in the context of his June 24, 2015 claim of entitlement to an increased rating for his right foot disability. As indicated above, in a February 2022 rating decision, he was awarded TDIU, effective from October 6, 2021. Thus, the Board will herein consider the question of entitlement to a TDIU from June 24, 2015 to October 6, 2021. Rice, supra. From June 24, 2015 to October 6, 2021, the Veteran has been evaluated as zero percent for bilateral hearing loss, prior to October 6, 2021 and 40 percent thereafter for bilateral hearing loss, 30 percent for residuals of right foot injury with great and second toenail malformation, 10 percent for metatarsalgia with osteoarthritis of the right foot, 50 percent for posttraumatic stress disorder (PTSD), and 10 percent for tinnitus. His combined rating during this period was 70 percent. As such, he now meets the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a). Thus, the question in this matter is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him from June 24, 2015 to October 6, 2021. In the July 2015 VA scars examination report, the examiner reported that the Veteran's right foot disability does not impact his ability to work. The examiner reported that the Veteran retired as a lineman in 2004; his job had involved physical labor. The July 2015 VA audiology examiner reported that the Veteran's bilateral hearing loss does impact his ability to work. The examiner noted the Veteran's report that, "[w]ithout my hearing aids, I can't hear conversations without really listening. Even with my hearing aids, I have a problem hearing in a group setting." In his November 2017 TDIU claim (VA Form 21-8940), the Veteran reported that he last worked in April 2004. He had worked as a lineman for an energy company. The Veteran stated that he is unable to work due to his right foot, hearing loss, and PTSD disabilities. He indicated that he has a high school education. He stated, "I have a problem with people of authority, especially if they want me to do stupid things. [I] [c]ouldn't do my job again." The November 2017 VA examiner indicated that the Veteran's right foot disability significantly impacts his functional abilities and pain is worse with weight-bearing. The examiner stated that the Veteran's right foot disability does impact his ability to work; specifically, "[t]he functional impact of each condition is painful with ambulation requiring rest, non-weight bearing for improvement." The examiner opined that the Veteran "develops pain while standing/ambulating which significantly limits his ability to be on his feet more than 15 minutes without significant pain/discomfort. He rides in a golf cart at times for transport due to discomfort with ambulation." The Veteran was afforded a VA psychological examination in November 2017 at which time the examiner reported that the Veteran's PTSD manifests in "[o]ccupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; [a]lthough generally functioning satisfactorily with normal routine behavior, self-care and conversation." As to the question of employability, the examiner explained: The Veteran's current symptoms of PTSD are likely to have a mild to moderate impact on his functional occupations ability to the extent that he may be less reliable to attend employment on a constant basis without missed days, and while at work he is likely to have periods of decreased focus and productivity, particularly during periods of workplace stress. While these difficulties do not rule-out employment related activities, they are likely to contribute to some difficulty in his overall occupational abilities. The November 2017 VA audiology examiner indicated that the Veteran's bilateral hearing loss does impact his ability to work. The examiner noted the Veteran's report that he cannot hear his granddaughter, even when she is right next to him. He further stated that he wears hearing aids and, although they sometimes help, he must still ask people to repeat themselves. The examiner opined, The Veteran is retired. The Veteran reported difficulty hearing with and without his hearing aids in his ears and often asks people to repeat themselves. The Veteran has a mild to profound sensorineural hearing loss with word recognition abilities that would be considered disabling by VA standards. The Veteran has hearing loss that is more severe than in the higher frequencies, frequencies that are most important for speech clarity. Even when speech is appropriately amplified, it would be expected that the Veteran would not completely understand everything that is said to him. In a January 2018 VA Form 21-4192, the Veteran's former employer indicated that the Veteran retired in April 2004. The January 2020 VA audiology examination report indicated that the Veteran's bilateral hearing loss disability does impact his ability to work; specifically, he misses conversations because of an inability to hear correctly. The January 2020 VA foot examiner reported that the Veteran's right foot disabilities do impact his ability to perform occupational tasks. The examiner explained that the "Veteran will have difficulty and pain on prolonged standing (greater than 1 hour) and walking (greater than 0.5 mile) due to pain in the right foot and during flare ups." The Board finds that the record on appeal, including that delineated above, reflects that the Veteran's service-connected disabilities had a significant impact on his ability to work prior to October 6, 2021. Although VA examiners did not indicate that the Veteran's symptoms rendered him unemployable, the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Id. at 1354. Given the clear and significant effects of the Veteran's PTSD, bilateral hearing loss and right foot symptoms as described above by the individual examiners, and considering the Veteran's educational level, work experience, and the functional impact of the combination of these disabilities on his ability to perform the physical and mental tasks required by employment, the Board finds that the evidence is approximately evenly balanced as to whether his service-connected disabilities render him unable to secure and follow substantially gainful employment from June 24, 2015 to October 6, 2021. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted from June 24, 2015 to October 6, 2021. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.