Citation Nr: 9911196 Decision Date: 04/26/99 Archive Date: 05/06/99 DOCKET NO. 94-31 807A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right knee disability. 3. Evaluation of service-connected bilateral hearing loss, currently rated as noncompensably disabling. 4. Evaluation of service-connected right foot disability, including a claw deformity of the second toe and hallux valgus with arthritis, currently rated as 10 percent disabling. 5. Evaluation of service-connected left foot hallux valgus with arthritis, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from September 1969 to September 1993. This matter comes to the Board of Veterans' Appeals (Board) following a December 1993 decision by the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's claims of service connection for a back disability and right knee disability. The December 1993 decision also awarded service connection for bilateral hearing loss, a right foot claw deformity of the second toe, right foot hallux valgus, and left foot hallux valgus. Zero percent ratings were assigned to each, effective from October 1, 1993. Thereafter, by a July 1995 hearing officer's decision, a 10 percent rating was assigned for left foot hallux valgus with arthritis, and for right foot hallux valgus with arthritis and claw deformity of the second toe. Both ratings were made effective from October 1,1993. FINDINGS OF FACT 1. No competent medical evidence has been submitted showing that a back disability is attributable to military service or events coincident therewith. 2. No competent medical evidence has been submitted showing that a right knee disability is attributable to military service or events coincident therewith. 3. The veteran has hearing loss in each ear that equates to a numeric designation of I under applicable VA regulations. 4. The veteran's right foot disability is manifested by moderate bulging of the medial border, moderate hallux of the great toe without deviation at the metatarsophalangeal joint, clawing of the right second toe, a callus over the proximal interphalangeal joint of the right second toe and mild generalized degenerative arthritis of the left foot. 5. The veteran's left foot disability is manifested by moderate bulging of the medial border, hallux valgus with medial deviation of about 25 degrees, a callus over the proximal interphalangeal joint of the great toe, and degenerative arthritis with spur formation and narrowing of the joint spaces. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of entitlement to service connection for a back disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). 2. The veteran has not submitted a well-grounded claim of entitlement to service connection for a right knee disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1998). 3. A rating greater than zero percent for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.85, Diagnostic Code 6100 (1998). 4. A rating greater than 10 percent for right foot hallux valgus with arthritis and claw deformity of the second toe is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a (Diagnostic Codes 5003, 5278, 5280, 5284) (1998). 5. A rating greater than 10 percent for left foot hallux valgus with arthritis is not warranted. 38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. § 4.71a (Diagnostic Codes 5003, 5280, 5284) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Claims The veteran and his representative contend that he first started having back pain while in military service and that this pain was the first sign of the degenerative joint disease that was later diagnosed. It is also contended that the veteran injured his right knee in service when playing football, and later when jumping off a truck, and that he has had chronic pain since that time. It is also requested that the veteran be afforded the benefit of the doubt. Initially, the Board notes that a person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible, or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in-service injury or disease and current disability. This third element may also be established by the use of statutory presumptions. 38 C.F.R. § 3.307, 3.309 (1998); See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). As for the veteran's claim of service connection for a back disability, the Board notes that service medical records include an October 1975 treatment record that shows that the veteran reported a neck and right shoulder injury following a fall. The diagnosis was probable musculoskeletal injury. A subsequent neck X-ray was unremarkable except for exaggerated lordosis. Next, as to the claim of service connection for a right knee disability, service medical records show that, in September 1976, the veteran sought treatment because he twisted his right knee playing football. The diagnosis was right knee sprain. The veteran was placed on crutches. Subsequently, in December 1976, the veteran re-injured his knee when jumping from a truck. Examination showed the leg to be grossly unstable. (The Board notes that the December 1976 record does not say which knee the veteran injured.) Thereafter, in April 1983, the veteran sought treatment for right knee pain. However, on examination, the knee was stable, had full range of motion, and was not tender. An October 1983 physical therapy record shows that the veteran received an injection in his right knee. Lastly, a May 1993 record shows that the veteran complained of an eight-day history of right knee pain. At a November 1993 VA examination, the veteran complained that squatting or sitting for a period of a few minutes aggravated his knee condition. On examination, the right knee was normal. There was no swelling or deformity, and he had full range of motion. There was no instability, McMurray's sign was negative, and X-rays were normal. The diagnosis was a history of trauma to the right knee with no residuals evident. The veteran testified at a personal hearing at the RO in October 1994. He said that he injured his back during military service when performing lifting as required by his job. At that time he was treated with anti-pain medication and by being given light duty. As for his right knee disability, he testified that he twisted it in service which twisting caused ligament damage. He reported that his knee was aspirated and placed in a cast for six weeks. However, because he had an office job at the time, he was not placed on limited duty. He testified that his knee popped out with walking. At a May 1995 VA examination, the veteran reported no history of a specific back injury. He stated that he simply began to have pain and stiffness in his lower back about eight years earlier. He complained of periodic pain and stiffness with attacks every two months. On examination, range of motion was limited. X-ray evidence showed degenerative arthritis. The diagnosis was lumbar spine degenerative joint disease. The May 1995 VA examination report regarding the veteran's right knee shows that he complained that his knee gave out periodically, even on even ground. He said that squatting aggravated his condition. However, on examination no adverse symptomatology was seen (no swelling or deformity; no tenderness; painless and full range of motion; no laxity; negative McMurray's sign; and normal X-rays). The diagnosis was chronic right knee strain. What is significant about the evidence described above is, paradoxically, what it does not include. None of the records on appeal includes a medical nexus opinion that tends to show a relationship between back disability or right knee disability and military service. Likewise, no medical opinion has been presented that tends to show a relationship between any such disabilities and the veteran's complaints of continued symptoms since service. Evidence showing a medical diagnosis more than a year following the veteran's release from military service is not helpful to the veteran's claim of service connection, except that such evidence does indeed confirm that the veteran experiences current disability. Caluza, supra; 38 C.F.R. §§ 3.307, 3.309 (when arthritis is manifested to a degree of 10 percent or more within one year from the date of termination of certain military service, such disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service). Because the veteran was first diagnosed with lumbar spine degenerative joint disease more than one year after his separation from service, the one-year presumption does not aid the veteran in his attempt to submit a well-grounded claim. Id. The Board has considered the contentions of the veteran made through testimony at his personal hearing, through written statements filed with the RO, and through statements to physicians. However, these statements do not provide the requisite medical nexus. While the veteran is competent to provide information as to the visible symptoms he experienced during and after service, he has not been shown to be competent to provide the medical opinion evidence necessary to make his claims of service connection well grounded. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993) (persons without medical expertise are not competent to offer medical opinions); Grottveit v. Brown, 5 Vet. App. 91 (1993); Bostain v. West, 11 Vet. App. 124 (1998). Furthermore, the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion. LeShore v. Brown, 8 Vet.App. 406 (1995); Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). It has also been suggested that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows that the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the veteran has presented a well-grounded claim. As the veteran has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the veteran has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit v. Brown, 5 Vet. App. 91 (1993), in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until a veteran has submitted a well-grounded claim, VA is under no duty to assist the veteran in establishing the evidentiary elements of his claim. In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears to merely reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the veteran's application for benefits is incomplete, VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the veteran's application is incomplete, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). Therefore, contrary to the representative's contentions in a January 1999 written presentation, the Board has no duty to assist the veteran. The representative has also requested consideration of the benefit-of-the-doubt doctrine; however, this principle does not apply until the veteran has submitted a well-grounded claim. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). II. Rating Issues The veteran and his representative contend that the veteran's service-connected bilateral hearing loss, and right and left foot disabilities are manifested by symptomatology that warrants the assignment of higher disability evaluations. It is also requested that the veteran be afforded the benefit of the doubt. Initially, the Board observes that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1998). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (1998). However, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1998). Furthermore, in cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). A. Bilateral Hearing Loss First, turning to the issue of bilateral hearing loss, the Board notes that pure tone audiometry tests and speech audiometry conducted by VA are used to evaluate the degree of hearing impairment. Methods are standardized so that the performance of each person can be compared to a standard of normal hearing, and ratings are assigned based on that standard. The assigned evaluation is determined by mechanically applying the rating criteria to certified test results. Lendenmann v. Principi, 3 Vet.App. 345 (1992). Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 cycles per second. To evaluate the degree of disability from service-connected defective hearing, the rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. § 4.85 and Part 4, Code 6100 (1998). Initially, the Board notes that service medical records show that the veteran underwent a number of audiological evaluations during his time in service. See service medical records dated in April 1975, June 1978, February 1986, March 1987, January 1990, November 1990, February 1991, and November 1992. However, at that most contemporaneous of these examinations, dated in November 1992, February 1991, November 1990, and January 1990, the examiners did not provide specific results, measured in decibels, as to the degree to which the veteran's hearing was impaired at the 1000 Hertz through 4000 Hertz range. Instead, the examiners attached a copy of graphic representations of the audiometric evaluation data obtained during the examinations. Following his separation from military service, the veteran appeared at two VA audiological evaluations. At a November 1993 evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 35 50 60 LEFT 50 70 30 30 35 Speech audiometry revealed speech recognition ability of 100 percent in each ear. The examiner then opined that the veteran had mild to moderately severe conductive hearing loss bilaterally. The veteran testified at a personal hearing at the RO in October 1994 that he had worn one hearing aid since 1991 and his second hearing aid since 1993. However, despite the use of his bilateral hearing aids he continued to have difficulty hearing people. This problem included difficulty hearing someone speak and distinguishing where sound was coming from in a loud environment. At the second VA audiological evaluation, conducted in May 1995, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 40 45 30 40 55 LEFT 45 70 50 25 40 Speech audiometry revealed speech recognition ability of 92 percent in the right ear and 96 percent in the left ear. The examiner opined that the veteran had mild to moderate mixed hearing loss in the right ear with significant air-bone gaps and moderate conductive hearing loss in the left ear. Lastly, the examiner stated that "[r]ating consideration should include the fact that[,] while hearing aids benefit this type of hearing loss very well[,] this veteran's recurring bilateral fluid drainage obviates the use of hearing aids in many cases." Initially, the Board notes that the Court in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), stated that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. Furthermore, the Court, in Kelly v. Brown, 9 Vet. App. 37 (1996), went on to state that the Board may not interpret graphic representations of audiometric data. Rather, the examiner must provide numerical results. Application of the rating criteria to either the November 1993 VA examination results or the May 1995 VA examination results reveals Level I hearing in the right ear and Level I hearing in the left ear. 38 C.F.R. § 4.85, Table VI. Given these studies, the veteran's service-connected bilateral hearing loss is deemed to be noncompensably disabling. 38 C.F.R. § 4.85, Table VII. Therefore, applying the schedular criteria, an evaluation greater than zero percent for the veteran's hearing loss is not warranted. This is also true throughout the period of time during which his claim has been pending. Fenderson, supra. Moreover, while the veteran claims that the results do not accurately reflect the degree of debility he experiences, it is these authorized audiological evaluation results alone on which schedular ratings are based. There being no indication in the record, other than the veteran's own assertions, that the results were not accurately obtained, the Board finds no basis for deciding this case otherwise. Lastly, the Board notes that an examiner has opined that the veteran's otitis media may cause him to be unable to wear his hearing aids on occasion and that his hearing aids aggravate his otitis media. First of all, the Board does not have before it the question of rating service-connected otitis media. Secondly, the Board notes that the record on appeal shows that the veteran had the above-noted test scores despite having a left ear infection at the time of his November 1993 VA examination. Therefore, because it is the authorized audiological evaluation results on which ratings are based, and because the record shows that, even when examined with a ear infection in November 1993, his scores entitled him to no more than a zero percent disability rating, the Board finds no basis for deciding this case otherwise. (An inability to use hearing aids may very well adversely affect the veteran in a manner beyond that contemplated by the rating schedule. However, the Board notes that applicable regulations allow for the chief of the audiology clinic to certify that use of the audiological test results would not present an accurate picture of the veteran's disability, see 38 C.F.R. § 4.85, and such a certification has not been made in this case.) B. Right and Left Foot Disabilities Historically, the veteran's has been service connected for claw toe deformity of the second toe of the right foot, hallux valgus deformity of the right foot, and hallux valgus deformity of the left foot which were initially found to be noncompensably disabling under Diagnostic Codes 5278 (acquired claw foot) and 5280 (unilateral hallux valgus). See RO decision entered in December 1993. Thereafter, in the July 1995 hearing officer's decision, a 10 percent rating was assigned for right hallux valgus with claw deformity of the second toe and arthritis. A 10 percent rating was also assigned for left hallux valgus with arthritis. Initially, the Board notes that service medical records show that, in October 1969, the veteran sought treatment for a tender right second toe. A February 1993 podiatry examination revealed a contracted second toe of the right foot with dorsal irritation at the proximal interphalangeal joint and contracted second toe of the left foot with tyloma. Additionally, hallux abducto valgus deformities on both the right and left feet were seen. The examiner opined that enlargement of the great toe joints caused contracture of the second and third toes that in turn caused pressure on the ball of the foot which lead to irritation in the dorsal aspect of the toes. Thereafter, November 1992 bilateral feet X-rays showed an old fracture of the proximal phalanx of the second right toe, bilateral hallux valgus deformities, and bilateral mild degenerative changes of the first metatarsophalangeal joint. At a November 1993 VA examination, the veteran reported that he had fractured the second toe on the right foot in 1990 while running. He believed that his second toe was deformed, and he reported that he had to wear special shoes that provided room for this deformity. On examination, the right foot showed no bulging of the medial border. Longitudinal transverse latches appeared to be normal. There was no spasm or tenderness of the peroneal muscles on the right. However, there was moderate hallux valgus and clawing of the second toe. On examination, the left foot had no bulging of the medial border. Transverse and longitudinal latches appeared normal. However, there was a moderate to marked bunion on the left with hallux valgus and clawing of the toes. X-rays of the feet showed bilateral hammertoes. The diagnoses were clawing of the toes and hallux valgus bilateral. The veteran testified at a personal hearing at the RO in October 1994. He said that he had bunions that bothered him all day. Moreover, wearing a different type of shoe did not relieve his discomfort. Additionally, as to the second toe on his right foot, he reported that it was both deformed and painful. Moreover, he reported that it rubbed against the top of his shoe and that this caused a callus to form over the joint. At a May 1995 VA examination, the veteran complained of a right foot bunion, claw toes, and aching across the toes. He also complained of a left foot bunion and pain in the first and second toes. He reported that standing for one-half hour to forty-five minutes aggravated his condition. Lastly, he reported that he had to wear loose fitting shoes because of his claw toe and bunion. On examination, he was unable to walk on his toes because of his condition. However, heel walking was normal. Examination of the right foot showed a moderate bulging of the medial border. There was also a moderate hallux of the great toe without deviation at the metatarsophalangeal joint. There was a clawing of the right second toe with flexion of the proximal interphalangeal joint. There was a callus over the proximal interphalangeal joint of the right second toe of about 0.5cm. The longitudinal and transverse arches appeared to be down on the right. There was no plantar tenderness and no plantar callus. X-rays of the right foot showed mild and generalized degenerative arthritis of the right foot and valgus deformity of the right great toe. Examination of the left foot revealed a moderate bulging of the medial border. There was a hallux valgus of the left great toe with medial deviation of about 25 degrees. There was a callus over the proximal interphalangeal joint of this toe of 0.5cm. However, there was no clawing of the left toes or plantar tenderness of the left foot. X-rays of the left foot showed valgus deformity of the left great toe and degenerative arthritis of the left foot with spur formation and narrowing of the joint spaces. The diagnoses were degenerative arthritis of both feet with valgus deformity of the great toes bilaterally. Initially, the Board notes that, given the 10 percent disability rating currently assigned the veteran's service- connected right and left foot disabilities, he will only be entitled to a higher evaluation under Diagnostic Codes used to rate the foot and toes if: he has unilateral claw foot (pes clavus) with all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under metatarsal heads (the criteria for a 20 percent evaluation under Diagnostic Code 5278); or moderately severe malunion or nonunion of tarsal or metatarsal bones (the criteria for a 20 percent evaluation under Diagnostic Code 5283); or other moderately severe foot injury (the criteria for a 20 percent evaluation under Diagnostic Code 5284); or X-ray evidence of degenerative arthritis with involvement of 2 or more minor joint groups with occasional incapacitating exacerbations (the criteria for a 20 percent evaluation under Diagnostic Code 5003). 38 C.F.R. § 4.71a (1998). Turning to the merits of the case, the Board first considers the applicability of Diagnostic Code 5278 (unilateral claw foot). At neither the November 1993 examination nor the May 1995 VA examination did his feet show all toes tending to dorsiflexion, limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under metatarsal heads. In fact, the May 1995 examiner reported the veteran had problems with only two of the toes of the right foot (first and second toes) and one toe on the left foot (first toe). The Board notes that the November 1993 examiner reported that the veteran had clawing of the "toes" of the left foot. However, the May 1995 VA examiner found that the left foot did not have claw toes. Moreover, there is no suggestion that he has claw foot. Consequently, an increased schedular rating is not warranted for the veteran's service-connected right or left foot disability under this Code section. Next, the Board has considered the potential applicability of Diagnostic Code 5283 (malunion or nonunion of tarsal or metatarsal bones). However, the record on appeal is devoid of any evidence of such a problem. See November 1993 and May 1995 feet X-rays. (Specifically, May 1995 X-rays of the right foot showed mild and generalized degenerative arthritis of the right foot and valgus deformity of the right great toe and May 1995 X-rays of the left foot showed valgus deformity of the left great toe and degenerative arthritis of the left foot.) Consequently, an increased schedular rating is not warranted for the veteran's service-connected right or left foot disability under this Code section. Criteria for rating foot injuries allow for a 20 percent rating when there is a moderately severe injury. See Diagnostic Code 5284. The term "moderately severe" is not defined by regulation. However, as reported above, the overall regulatory scheme relating to the feet and toes contemplates 20 percent ratings in cases where problems include such difficulties as dorsiflexion of all toes unilaterally and marked tenderness under the metatarsal heads. See Diagnostic Code 5278 (1998) (no more than 10 percent is warranted even if the great toe is dorsiflexed). A 20 percent rating may also be assigned when there is moderately severe malunion or nonunion of the tarsal or metatarsal bones. See Diagnostic Code 5283. However, the record does not indicate that the veteran's disability approximates such degrees of debility. The veteran has testified that he had a history of bunion formation and chronic pain because both the second toe of the right foot and his great toes were deformed. Moreover, on examination in November 1993, the right foot had moderate hallux valgus and clawing of the second toe. Additionally, the left foot was also reported to have moderate to marked bunion on the left with hallux valgus and clawing of the toes. Similarly, when examined in May 1995, although he was unable to walk on his toes, the right foot showed only a moderate bulging of the medial border, moderate hallux of the great toe, clawing of the right second toe with flexion of the proximal interphalangeal joint, a callus over the proximal interphalangeal joint of the right second toe, and the arches down on the right. Examination of the left foot showed a moderate bulging of the medial border, a hallux valgus with medial deviation of about 25 degrees, and a callus over the proximal interphalangeal joint. However, the examination did not reveal problems of the type contemplated for higher ratings under similar diagnostic codes. Therefore, the Board finds that, while the term "moderately severe" is not defined by regulation, when compared with other comparable ratings for the feet, this term must be understood to require more than the type of problems experienced by the veteran. As suggested by the reference to Diagnostic Code 5278 above, even dorsiflexion of the great toe warrants no more than a 10 percent rating. See Diagnostic Code 5278. Consequently, regardless of the VA examiners use of the word "moderate" when describing the degree of impairment of a single toe, where, as here, the veteran's feet were neither swollen or tender, and no abnormalities were reported as to his other toes (while the November 1993 VA examiner reported clawing of the toes of the left foot, the veteran is not service-connected for claw toes of the left foot and the May 1995 examiner reported that there was no clawing of the toes of the left foot), an increase under Diagnostic Code 5284 is not warranted. See also 38 C.F.R. § 4.14 (1998). As previously stated, under Diagnostic Code 5003 degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, as outlined above, the Diagnostic Codes pertaining to limitation of motion of the veteran's service-connected right and left toe disabilities provide for a compensable (10 percent) disability rating for his service-connected disabilities, but no more. 38 C.F.R. § 4.71a, Diagnostic Codes 5278, 5280, 5281, 5282, 5283, 5284) (1998). Therefore, because the veteran has already been assigned compensable disability ratings for his service-connected right and left toe disabilities, at least in part on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, an increased schedular rating is not warranted under this Code section. Furthermore, the Board notes that functional loss attributable to pain on use has been considered in arriving at the current assessments. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (1998); Johnson v. Brown, 9 Vet. App. 7, 11 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Accordingly, the Board finds that the 10 percent rating currently assigned pursuant to Diagnostic Codes 5280-5278 and 5280-5003 takes into account his complaints of pain and compensates him for it. This is true throughout the period of time during which his claim has been pending. Fenderson, supra. The Board consequently concludes that the preponderance of the evidence is against these claims. (As noted above, the benefit-of-the-doubt doctrine does not apply where the preponderance of the evidence is against a claim. Gilbert, supra.) ORDER Service connection for a back disability is denied. Service connection for a right knee disability is denied. Evaluation greater than zero percent for bilateral hearing loss is denied. Evaluation greater than 10 percent for right foot hallux valgus with claw deformity of the second toe and arthritis is denied. Evaluation greater than 10 percent for left foot hallux valgus with arthritis is denied. MARK F. HALSEY Member, Board of Veterans' Appeals