Citation Nr: 23023686 Decision Date: 04/25/23 Archive Date: 04/25/23 DOCKET NO. 18-43 231 DATE: April 25, 2023 ORDER Entitlement to a rating in excess of 10 percent for a left fifth finger disability is denied. Entitlement to a rating in excess of 10 percent, prior to June 17, 2019, for right foot plantar fasciitis is denied. Entitlement to a rating in excess of 10 percent, prior to June 17, 2019, for left foot plantar fasciitis is denied. Entitlement to a rating in excess of 30 percent, from June 17, 2019 and thereafter for bilateral pes planus with bilateral fasciitis and degenerative arthritis is denied. Entitlement to a compensable rating prior to October 19, 2022, and a rating in excess of 10 percent from October 19, 2022 and thereafter, for cataracts is denied. Entitlement to service connection for right ear hearing loss is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left fifth finger disability manifested, at worst, as limitation of flexion with objective evidence of pain such that a maximum 10 percent rating is warranted. 2. Prior to June 17, 2019, the evidence indicates that the Veteran's right foot plantar fasciitis manifested in moderate severity. 3. Prior to June 17, 2019, the evidence indicates that the Veteran's left foot plantar fasciitis manifested in mild to moderate severity. 4. From June 17, 2019 and thereafter, the evidence indicates that the Veteran's right and left feet disabilities manifest in plantar fasciitis and severe bilateral pes planus with objective evidence of pain on manipulation and use accented, swelling on use, and characteristic callosities. 5. The evidence of record indicates that prior to October 19, 2022, the Veteran's cataract symptoms manifested, at worst, as corrected visual acuity of 20/40 in the right and left eye, and from October 19, 2022 and thereafter, the Veteran's cataract symptoms manifest, at worst, as corrected visual acuity of 20/50 in the right eye and 20/40 in the left eye. 6. The evidence of record does not establish that the Veteran has or has had a current right ear hearing loss disability, as defined by VA regulations, at any point during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left fifth finger disability have not been met. 38 U.S.C. § 1155, 5103A; 38 C.F.R. §§ 4.20, 4.27, 4.59, 4.71a; Diagnostic Codes 5299-5226. 2. The criteria for a rating in excess of 10 percent, prior to June 17, 2019, for right foot plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Codes 5299-5284, 5269-5276 (2020) (2021). 3. The criteria for a rating in excess of 10 percent, prior to June 17, 2019, for left foot plantar fasciitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Codes 5299-5284, 5269-5276 (2020) (2021). 4. The criteria for a rating in excess of 30 percent, from June 17, 2019 and thereafter for bilateral pes planus with bilateral fasciitis and degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Codes 5299-5284, 5269-5276 (2020) (2021). 5. The criteria for a compensable rating prior to October 19, 2022 and a rating in excess of 10 percent from October 19, 2022 and thereafter for cataracts have not been met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.75-4.79, Diagnostic Codes 6027-6066 (2020) (2021). 6. The criteria for service connection for right ear hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Army from August 1986 to February 1996. In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a Virtual hearing. A copy of the transcript has been associated with the claims file. In September 2021, the Board remanded the appeal for further development. Increased Rating 1. A rating in excess of 10 percent for a left fifth finger disability The Veteran contends that his left fifth finger disability is such that a rating in excess of 10 percent is warranted. The Veteran currently has a 10 percent rating under 30 C.F.R. § 4.71 Diagnostic Code 5299-5226. The hyphenated diagnostic code is used when a rating requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5299 indicates the disability is not listed in the Schedule for Rating Disabilities and it has been rated by analogy under a closely related disease or injury (38 C.F.R. § 4.20)). Diagnostic Code 5226 (ankylosis of long finger) provides for a maximum 10 percent disability rating for unfavorable or favorable ankylosis. Turning to the evidence, in a February 2015 VA examination, the Veteran reported some discomfort with gripping some objects. The Veteran stated that his digit was fully functional with some discomfort at certain angles. The examiner noted normal range of motion of the left fingers. The examiner stated that there was no gap between the pad of the thumb and the fingers. The examiner also reported that there was no evidence of pain with use of the hand and no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner stated that there was no additional loss of range of motion after three repetitions. The examiner stated that the Veteran was not examined immediately after repetitive use over time. The examiner noted that the examination neither supports nor contradicts the Veteran's statements describing functional loss with repetitive use over time. The examiner stated that the examination was not conducted during a flare-up and the Veteran did not report flare-up. The examiner noted normal left hand muscle strength. The examiner stated that there was no muscle atrophy. The examiner went on to report no ankylosis of the left hand. Upon imaging studies, the examiner reported degenerative or traumatic arthritis of the left hand. The examiner reported functional impact, described as difficulty with lifting heavy objects, noting that the Veteran has to change grip or hands at times due to pain in the fifth digit joint. In an October 2021 VA examination, the Veteran reported pain, stiffness, and tingling in left hand, causing difficulty with lifting or carrying heavy objects, pushing/pulling objects, driving, household chores. The Veteran also stated that he has decreased ability to complete certain activities of daily living affecting the quality of his life and work. The Veteran reported moderate flare-ups with a frequency of three times a week and duration of three hours. The Veteran described characteristics of a flare-up as increased pain and stiffness. The Veteran noted that flare ups are precipitated by lifting or carrying heavy objects, pushing/pulling objects, driving, or doing household chores. The Veteran stated that alleviating factors are over-the-counter medication and rest. The Veteran stated that functional impairment during a flare up or with repeated use of time include difficulty with lifting or carrying heavy objects, pushing/pulling objects, driving, and doing household chores. The examiner noted abnormal range of motion of the left hand little finger, with flexion endpoint at 45 degrees MCP, 50 degrees PIP, and 35 degrees DIP. The examiner noted normal extension endpoint. The examiner stated that there was no gap between the pad of the thumb and the fingers. The examiner stated that there was objective evidence of moderate localized tenderness located in the left 5th finger. The examiner stated that pain was noted on examination of the little finger. The examiner further reported that there was evidence of pain in weight bearing, non-weight bearing, active motion, and passive motion. The examiner noted additional loss of function after completion of three repetitions, reporting flexion endpoint of the little finger at 35 degrees MCP, 40 degrees PIP, and 30 degrees DIP. The examiner noted that pain, fatigability, weakness, lack of endurance and incoordination as factors that cause functional loss. The examiner stated that the Veteran was not examined immediately after repetitive use over time. The examiner reported that procured evidence suggests that pain, fatigability, weakness, lack of endurance, and incoordination significantly limit functional ability with repeated use over time. The examiner described this limitation in terms of range of motion as flexion endpoint of the little finger at 35 degrees MCP, 40 degrees PIP, and 30 degrees DIP. The examiner went on to state that the Veteran was not examined during a flare-up. The examiner reported that procured evidence suggests that pain, fatigability, weakness, lack of endurance, and incoordination significantly limit functional ability during flare up. The examiner described this limitation in terms of range of motion as flexion endpoint of the little finger at 35 degrees MCP, 40 degrees PIP, and 30 degrees DIP. The examiner noted normal left hand muscle strength. The examiner stated that there was no muscle atrophy. The examiner went on to report no ankylosis of the left hand. The examiner reported that the Veteran used a brace with constant frequency as an assistive device due to the Veteran's left hand fifth finger disability. The examiner also noted June 1998 imaging studies, which showed torn radial collateral ligament, PIP-joint of small finger with persistent instability, capsular swelling and pain. The examiner reported functional impact, described as pain causing functional loss, including inability to perform daily activities and limitation on exercise, weakness, lack of strength, incoordination, and loss of endurance. The examiner went on to state that the Veteran has decreased activities of daily living, cannot drive when in pain, and cannot push, pull, or lift things. After review of the record, the Board finds that a 10 percent rating for left fifth finger disability is appropriate. Throughout the appeal period, the Veteran's left fifth finger disability manifested, at worst, as limitation of flexion with objective evidence of pain. The Veteran has a maximum 10 percent rating for left long finger disability. Therefore, a rating in excess of 10 percent rating for the left fifth finger disability is not warranted. In reaching this decision, the Board has considered the Veteran's lay statements regarding the severity of his symptoms throughout this period. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating now assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a rating should be higher than that assigned. 2. A rating in excess of 10 percent, prior to June 17, 2019, for right foot plantar fasciitis 3. A rating in excess of 10 percent, prior to June 17, 2019, for left foot plantar fasciitis 4. A rating in excess of 30 percent, from June 17, 2019 and thereafter for bilateral pes planus with bilateral fasciitis and degenerative arthritis The Veteran contends that his right and left feet disabilities are such that ratings in excess of 10 percent prior to June 17, 2019, and in excess of a combined 30 percent rating from June 17, 2019 and thereafter are warranted. Prior to June 17, 2019, the Veteran's plantar fasciitis of the right and left foot was rated as 10 percent for each foot under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5284. The hyphenated diagnostic code is used when a rating requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5299 indicates the disability is not listed in the Schedule for Rating Disabilities and it has been rated by analogy under a closely related disease or injury. 38 C.F.R. § 4.20. Under Diagnostic Code 5284, a 10 percent rating is assigned for moderate foot injury; a 20 percent rating is assigned for moderately severe foot injury; and a 30 percent rating is assigned for severe foot injury. 38 C.F.R. § 4.71a, Code 5284. Words such as "moderate" and "severe" are not defined in Code 5284, or elsewhere in the rating schedule in a way that might be applicable to Code 5284. From June 17, 2019 and thereafter, the Veteran's plantar fasciitis is rated as a combined rating of 30 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5269-5276. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Effective February 7, 2021, Diagnostic Code 5269 provides compensation for plantar fasciitis. 38 C.F.R. § 4.71a. A 30 percent rating is appropriate for bilateral plantar fasciitis with no relief from both non-surgical and surgical treatment, bilateral. Id. Note (1) provides that a 40 percent rating is appropriate with actual loss of the foot. Id. Note (2) provides that if a veteran has been recommended for surgical intervention, but is not a surgical candidate, evaluate under the 20 percent or 30 percent criteria, whichever is applicable. Id. Diagnostic Code 5276 was not amended in the provisions that went into effect on February 7, 2021. This code provides ratings for acquired flatfoot. 38 C.F.R. § 4.71a. Under Diagnostic Code 5276, a 30 percent rating is warranted for bilateral severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. Id. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the Tendo Achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability and is rated 50 percent disabling for bilateral disability. Id. The Veteran need not "show all the findings specified" in the pronounced criteria of Diagnostic Code 5276 to obtain a 50 percent rating for bilateral pes planus disorder. 38 C.F.R. § 4.21. See also Dyess v. Derwinski, 1 Vet. App. 448, 455 (1991) (holding that the Board should consider § 4.21 when applying Diagnostic Code 5276). In a memorandum decision, the United States Court of Appeals for Veterans Claims (Court) observed that because the dictionary definitions of words such as "moderate" or "marked" disability "only denote comparative degree or severity, their substantive meanings vary depending on the DC in which they are used." Cross v. Wilkie, No. 19-7832, 2020 U.S. App. Vet. Claims LEXIS 2197 (2020). While not binding precedent, the Board finds that observation provides helpful guidance. The Board finds that the phrase "moderately severe" denotes a level of disability that is between being "average in amount, intensity, quality, or degree" and being "very great [or] intense," such that it does not more nearly approximate the lower or the higher level of disability. In the absence of an express definition, words are given their ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (citing Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003)). The ordinary meaning of "severe" is "very great [or] intense," or "of a great degree." Id. (quoting, respectively, the NEW OXFORD AMERICAN DICTIONARY 1599 (3d ed. 2010) and MERRIAM-WEBSTER DICTIONARY online (internal citation omitted)). The ordinary meaning of "moderate" is "average in amount, intensity, quality, or degree." Gallagher v. Wilkie, No. 19-1855, 2020 U.S. App. Claims LEXIS 1889 (2020) (quoting NEW OXFORD AMERICAN DICTIONARY 1124 (3d ed. 2010). Turning to the evidence, in a February 2015 VA examination, the examiner noted a diagnosis of plantar fasciitis of both the right and left feet. The Veteran reported symptoms of excruciating pain in heels and burning in toes. The Veteran stated that he treated his disabilities with inserts, night splints, and anti-inflammatory medication. The Veteran reported flare-ups, described as more severe foot pain causing the Veteran to remove his shoes and stretch his feet. The Veteran also noted decreased activity, such as long periods of standing and walking at least for a short time to stretch his foot out. The examiner noted mild plantar fasciitis of the left foot and moderate plantar fasciitis of the right foot. The examiner also noted mild hallux valgus of both the right and left feet. The examiner stated that the Veteran's right foot is more affected than the left primarily because he has some associated burning in the great toe on the right as well as the fascial heel pain. The examiner stated that the Veteran is able to complete all needed tasks, noting that the foot pain does not preclude his ability to complete any task but does require modification to daily activities at times to allow time to stretch and ice feet. The examiner went on to note that the Veteran wears splinting to rest at night on occasion, which is not comfortable. The examiner did not note pain on examination of either foot. The examiner stated that the Veteran had functional loss during flare-ups or when the foot is used repeatedly over a period of time, but the examiner noted that while the Veteran may have increased pain, the subjective data indicates that pain is not to a degree that the Veteran is limited in any activity; he just becomes less comfortable. The examiner reported occasional use of a brace as an assistive device. Upon imaging studies, the examiner reported degenerative or traumatic arthritis of the right and left feet. In a June 2019 VA medical record, the examiner noted that the Veteran had flexible flatfoot as a foot type. The examiner explained that this meant the Veteran's arches fall with weight bearing. In an October 2021 VA examination, the Veteran reported easily tired feet. The Veteran described his feet as painful and achy, especially in the area of the arches and heels. The Veteran stated that the inside bottoms of the feet become swollen with any foot movement. The Veteran also noted that standing on the feet for more than fifteen minutes is very difficult. The Veteran stated that pain radiates to upper extremities. The Veteran described his pain as sharp pain in the heels and burning pain in the toes. The Veteran reported flare-ups, described as moderate with a frequency of three times a week and a duration of three hours. The Veteran characterized the flare-ups as increased pain and tingling. Precipitating factors include running, prolonged walking or standing, and using stairs. The Veteran stated that pain medication and rest were alleviating factors. The Veteran also noted functional loss or impairment, described as difficulty with running, prolonged walking or standing, and using stairs. The examiner reported that the Veteran's pes planus symptoms include pain on use of both feet, pain accentuated on use of both feet, pain accentuated on manipulation of both feet, swelling on use of both feet, characteristic calluses affecting both feet, use of arch supports and built-up shoes for both feet with no relief, and decreased longitudinal arch height of both feet on weight-bearing. The examiner also reported that the Veteran has undergone non-surgical treatment for plantar fasciitis of both feet. The examiner noted that treatment did not relieve symptoms of either foot. The examiner stated that the Veteran was not recommended surgical intervention. The examiner reported functional loss due to plantar fasciitis, described as difficulty with running, prolonged walking or standing, and using stairs. The examiner reported pain on weight-bearing, non weight-bearing, active motion and passive motion, causing functional loss. The examiner reported additional contributing factors of the disabilities, to include swelling, disturbance in locomotion, interference with standing, pain, and fatigue. The examiner noted use of custom orthotics constantly and assistive devices. The examiner reported functional impact, described as difficulty with any foot movement and standing on feet for more than fifteen minutes. The examiner noted pain radiation to upper extremities, affecting the Veteran's life. The examiner stated that the Veteran could not complete activities of daily living, including driving, without pain. In an August 2022 VA examination, the Veteran reported excruciating cramps and painful locking in his feet, bringing him to tears. The Veteran described radiating electric shocks in the foot. The Veteran did not report flare-ups, but he did report functional loss or impairment, described as limited amount of time on feet and limited ability to drive. The examiner reported that the Veteran's pes planus symptoms include pain on use of both feet, pain accentuated on use of both feet, pain accentuated on manipulation of both feet, characteristic calluses affecting both feet, use of arch supports for both feet, decreased longitudinal arch height of both feet on weight-bearing, and "inward" bowing of the Achilles' tendon of both feet. The examiner reported that the Veteran has undergone non-surgical treatment for plantar fasciitis of both feet. The examiner noted that treatment did not relieve symptoms of either foot. The examiner stated that the Veteran was not recommended surgical intervention. The examiner noted functional loss or impairment due to plantar fasciitis, described as limited amount of time on feet and limited ability to drive. The examiner noted pain on examination of the right and left feet. The examiner reported less movement than normal, disturbance in locomotion, interference with standing, lack of endurance, and pain as contributing factors to the right and left feet disabilities. The examiner stated that procured evidence suggests that pain, fatigability, weakness, lack of endurance, or incoordination significantly limit functional ability during flare-ups and/or after repeated use over time of the right and left feet. The examiner described this functional loss as limitation in walking. The examiner noted that there was evidence of pain with weight-bearing. The examiner noted functional impact, described as difficulty walking, standing and driving. After review of the record, the Board finds that prior to June 17, 2019, a 10 percent rating for each foot for plantar fasciitis is appropriate. During this period, the evidence indicates that the Veteran's right and left feet disabilities manifested, at worst, as mild plantar fasciitis of the left foot and moderate plantar fasciitis of the right foot. The evidence does not indicate that the Veteran's plantar fasciitis manifested as moderately severe. Therefore, a 20 percent rating is not warranted for either the right or left foot during this period. From June 17, 2019 and thereafter, a 30 percent rating for pes planus with plantar fasciitis is appropriate. During this period, it is ascertainable that the Veteran's right and left foot disabilities manifest in severe bilateral pes planus with objective evidence of pain on manipulation and use accented, swelling on use, and characteristic callosities. The evidence does not show that the Veteran's pes planus manifested pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, and severe spasm of the Tendo Achillis on manipulation, that is not improved by orthopedic shoes or appliances. While there is evidence of inward displacement, the evidence does not establish that such displacement is "marked" in severity. Therefore, a 50 percent rating under DC 5276 is not warranted. The Board has also considered whether a higher rating is warranted under Diagnostic Code 5269, which provides compensation for plantar fasciitis, effective February 7, 2021. Note (1) provides that a 40 percent rating is appropriate with actual loss of the foot. However, there is no evidence that the Veteran had actual loss of the feet for the period under consideration. Therefore, a 40 percent rating under DC 5269 is not warranted. In reaching this decision, the Board has considered the Veteran's lay statements regarding the severity of his symptoms throughout this period. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a rating should be higher than that assigned. 5. A compensable rating prior to October 19, 2022, and a rating in excess of 10 percent from October 19, 2022 and thereafter, for cataracts The Veteran contends that his cataracts are such that a compensable rating prior to October 19, 2022, and in excess of 10 percent from October 19, 2022 and thereafter, is warranted. The Veteran is currently rated under 38 C.F.R. § 4.79, Diagnostic Code 6027-6066. 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 as a hyphen. 38 C.F.R. § 4.27. In the present case, the Veteran is rated under Diagnostic Code 6027 for cataracts on the basis of Diagnostic Code 6066 for impairment of central visual acuity for his bilateral cataracts. 38 C.F.R. § 4.27. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria distinguish preoperative and postoperative cataracts. For preoperative cataracts, the former criteria instructed to evaluate based on visual impairment and the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. For postoperative cataracts, both the former and revised rating criteria distinguish between pseudophakia and aphakia. If there is a replacement lens present (pseudophakia), then the former criteria instructed to evaluate based on visual impairment whereas the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or its rating criteria for incapacitating episodes. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). When the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, the visual acuity of the poorer eye will be evaluated using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity. 38 C.F.R. § 4.76(b)(1). In any case where an examiner reports that there is a difference equal to two or more scheduled steps between near and distance corrected vision, with the near vision being worse, the examination report must include at least two recordings of near and distance corrected vision and an explanation of the reason for the difference. In these cases, evaluation will be based on corrected distance vision adjusted to one step poorer than measured. 38 C.F.R. § 4.76(b)(3). Diagnostic Code 6066 provides ratings where vision in one eye (the poorer eye) is 10/200 or better. Where the visual acuity in both eyes is 20/40, a noncompensable rating is warranted. Where the visual acuity in one eye (the poorer eye) is 20/50, the following ratings apply. A 10 percent rating is warranted where vision in the other eye is either 20/50 or 20/40. Where the visual acuity in one eye (the poorer eye) is 20/70, the following ratings apply. A 30 percent rating is warranted where vision in the other eye is also 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40. Where the visual acuity in one eye (the poorer eye) is 20/100, the following ratings apply. A 50 percent rating is warranted where vision in the other eye is also 20/100. A 30 percent rating is warranted where vision in the other eye is 20/70. A 20 percent rating is warranted where vision in the other eye is 20/50. A 10 percent rating is warranted where vision in the other eye is 20/40. Where visual acuity in one eye (the poorer eye) is 20/200, the following ratings apply. A 70 percent rating is warranted where vision in the other eye is also 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40. Where visual acuity in one eye (the poorer eye) is 15/200, the following ratings apply. An 80 percent rating is warranted where vision in the other eye is also 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 40 percent rating is warranted where vision in the other eye is 20/70. A 30 percent rating is warranted where vision in the other eye is 20/50. A 20 percent rating is warranted where vision in the other eye is 20/40. Where visual acuity in one eye (the poorer eye) is 10/200, the following ratings apply. A 90 percent rating is warranted where vision in the other eye is also 10/200. An 80 percent rating is warranted where vision in the other eye is 15/200. A 70 percent rating is warranted where vision in the other eye is 20/200. A 60 percent rating is warranted where vision in the other eye is 20/100. A 50 percent rating is warranted where vision in the other eye is 20/70. A 40 percent rating is warranted where vision in the other eye is 20/50. A 30 percent rating is warranted where vision in the other eye is 20/40. Turning to the evidence, in a February 2015 VA examination, the examiner reported a diagnosis of small polar cataracts, both eyes, not visually significant, refractive error/presbyopia, both eyes, correctable to 20/20 in each eye with spectacles, status post trauma to left eye, and ophthalmic migraines. The examiner noted corrected near acuity at 20/20 for the right and left eye. The examiner also reported corrected distance acuity at 20/20 for both the right and left eye. In a November 2021 VA examination, the examiner reported corrected distance acuity as 20/40 for the right eye and 20/40 for the left eye. The examiner reported corrected near acuity as 20/40 for the right eye and 20/40 for the left eye. The examiner noted low tear break up time in both the right and left eye cornea. The examiner also noted that the Veteran had dry eye syndrome of both the right and left eye. The examiner did not report any incapacitating episodes within the last twelve months. In an October 2019 VA examination, the examiner reported corrected distance acuity as 20/50 for the right eye and 20/40 for the left eye. The examiner reported corrected near acuity as 20/50 for the right eye and 20/40 for the left eye. The examiner also noted that the Veteran had dry eye syndrome of both the right and left eye. The examiner did not report any incapacitating episodes within the last twelve months. After review of the record, the Board finds that prior to October 19, 2022, a noncompensable rating is appropriate. During this period, the Veteran's cataract symptoms manifested, at worst, as corrected distance acuity of 20/40 in both the right and left eye. The evidence does not indicate that during this time, the Veteran's symptoms manifested in at least one eye with corrected visual acuity of 20/50. Therefore, a 10 percent rating is not warranted during this period. From October 19, 2022 and thereafter, the Board finds that a 10 percent rating is appropriate. During this time, the Veteran's cataract symptoms manifested, at worst, as corrected distance acuity of 20/50 in the right and 20/40 in the left eye. The evidence does not indicate that the Veteran's cataract symptoms manifested in corrected visual acuity of 20/70 in the poorer eye. Therefore, a 20 percent rating is not warranted at any point during the pendency of the claim. The Board has considered whether a higher rating or any additional ratings are warranted under an alternative diagnostic code, but finds that there is no indication that the Veteran has a visual field defect, impairment of muscle function, or incapacitating episodes to warrant any higher or additional ratings. The evidence does not indicate that the Veteran has had surgery such that evaluation under postoperative criteria would be applicable. For these reasons, a higher rating is not warranted. In reaching this decision, the Board has considered the Veteran's lay statements regarding the severity of his symptoms throughout this period. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the ratings now assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a rating should be higher than that assigned. Service Connection 1. Service connection for right ear hearing loss The Veteran contends that he has a right ear hearing loss disability that is due to his period of service. The Board finds that the probative medical evidence of record indicates that the Veteran does not have a right ear hearing loss disability for VA purposes, and therefore, service connection is not warranted. Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; when the auditory thresholds for at least three of the above frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Turning to the first element of service connection, a current hearing loss disability must be established. In a February 2015 VA audio examination, the audiologist reported the following puretone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 10 10 15 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. In a November 2021 VA audio examination, the audiologist reported the following puretone thresholds (in decibels): HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 20 20 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. After review of the record, the Board finds that the probative evidence of record does not establish that the Veteran has impaired hearing disability of the right ear for VA purposes. The regulations set a clear standard for hearing disability for VA purposes. While the medical evidence does indicate some shifts in hearing, there is no evidence of record showing that, at any point, the claimed right ear hearing loss rose to the level that shows speech recognition of less than 94 percent, an auditory threshold at the frequencies 500, 1000, 2000, 3000, 4000 Hertz at 40 decibels or more, or at least three auditory thresholds at the frequencies of 26 decibels or more. Therefore, service connection for bilateral hearing loss is not warranted. The Board has considered the Veteran's contention that his period of service resulted in his right ear hearing loss. As a lay person, the Veteran is not competent to state that he has a hearing loss disability for VA purposes, as this requires numerical testing by a medical expert. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. The competent evidence establishes that the Veteran does not have the disability for which service connection is sought, and there can be no valid claim for service connection for a right ear hearing loss disability as that disability is not shown by the evidence of record. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). As such, because a right ear hearing loss disability for VA purposes has not been established, the criteria for service connection have not been met, and the claim is denied. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ford 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.