FOOT INJURIES OF

Summary

The veteran, who served, appeals the denial of increased ratings for emphysema, right foot metatarsalgia with arthritis, right foot hallux valgus, right foot hammer toes, and bilateral hearing loss. The Board granted an initial 30 percent rating for bilateral foot calluses, finding this diagnostic code more accurately reflected the veteran's disability than the previously assigned code. For emphysema, the Board denied an increased rating, finding the veteran's reported symptoms and inhaler use were not supported by pre-August 2020 medical evidence, and the VA examination results did not meet the criteria for a higher rating. The Board also denied increased ratings for metatarsalgia, hallux valgus, hammer toes, and hearing loss, finding the veteran's current symptoms and evidence did not meet the schedular criteria for higher evaluations or were already compensated under other diagnostic codes. The Board denied earlier effective dates for all granted conditions, citing the finality of prior decisions and the lack of new and material evidence or specific arguments for earlier dates. The claim for Total Disability based on Individual Unemployability (TDIU) was remanded for a VA examination to assess the cumulative impact of service-connected disabilities on the veteran's ability to maintain employment.

Rationale

DC 5284 more accurately reflects disability than DC 7819; Symptoms of pain and functional loss warrant 30% rating; Veteran's testimony regarding pain and mobility limitations found credible

Full Decision Text

Citation Nr: A26036089
Decision Date: 04/17/26	Archive Date: 04/17/26

DOCKET NO. 201007-117352
DATE: April 17, 2026

ORDER

Entitlement to an initial rating of 30 percent, but not higher, for bilateral foot calluses is granted.

Entitlement to an increased rating of more than 30 percent for stage I emphysema, lung disease (emphysema) is denied.

Entitlement to an increased rating of more than 10 percent for right foot metatarsalgia with arthritis is denied.

Entitlement to an initial compensable disability rating for right foot hallux valgus is denied.

Entitlement to an initial compensable disability rating for right second, third, fourth, and little hammer toes is denied.

Entitlement to an initial compensable disability rating for bilateral hearing loss is denied.

An effective date earlier than June 13, 2011, for the award of service connection for bilateral foot calluses is denied.

An effective date earlier than June 13, 2011, for the award of service connection for right foot hallux valgus is denied.

An effective date earlier than June 13, 2011, for the award of service connection for right foot metatarsalgia with arthritis is denied.

An effective date earlier than June 13, 2011, for the award of service connection for right second, third, fourth, and little hammer toes is denied.

An effective date earlier than June 13, 2011, for the award of service connection for bilateral hearing loss is denied. 

An effective date earlier than June 13, 2011, for the award of service connection for emphysema is denied.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's bilateral foot calluses are productive of pain and limited motion resulting in severe functional impairment.

2. The Veteran's emphysema manifested in no worse than FEV-1 of 56- to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted.

3. The Veteran's right foot metatarsalgia with arthritis has been evaluated as 10 percent disabling, which is the maximum schedular rating permitted for unilateral or bilateral anterior metatarsalgia.  

4. The Veteran's right foot hallux valgus symptomatology does not more nearly approximate severe unilateral hallux valgus equivalent to amputation of the great toe, or unilateral hallux vagus that has been operated upon with resection of metatarsal head.

5. The evidence persuasively weighs against finding that the Veteran has experienced hammer toes of all right foot toes.

6. The Veteran's bilateral hearing loss has been no worse than Level I in the right ear and Level I in the left ear.

7. A February 2004 rating decision that denied service connection for right foot condition became final as the Veteran did not submit a notice of disagreement or new evidence within the appeal period as to that issue.

8. The Veteran filed a claim to reopen seeking service connection for right foot condition and bilateral hearing loss on June 13, 2011. 

9. An August 2020 Board decision awarded service connection for bilateral foot calluses, right foot metatarsalgia, right foot hammer toes, right hallux valgus and bilateral hearing loss.

10. An August 2020 rating decision assigned an effective date of June 13, 2011, for the award of service connection for bilateral foot calluses, right foot metatarsalgia, right foot hammer toes, right hallux valgus and bilateral hearing loss.

11. The Veteran's claim for service connection for emphysema was received on June 13, 2011.

12. An August 2020 rating decision assigned an effective date of June 13, 2011, for the award of service connection for emphysema.

CONCLUSIONS OF LAW

1. The criteria to an initial 30 percent rating, but no higher, for bilateral foot calluses are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5282.

2. The criteria for entitlement to an initial rating in excess of 30 percent for emphysema have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.21, 4.96, 4.97,
ma.

CONCLUSIONS OF LAW

1. The criteria to an initial 30 percent rating, but no higher, for bilateral foot calluses are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DCs 5282.

2. The criteria for entitlement to an initial rating in excess of 30 percent for emphysema have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.21, 4.96, 4.97, DC 6603.

3. The criteria for an evaluation in excess of 10 percent for right foot metatarsalgia with arthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.104, DC 5279.

4. The criteria for an initial compensable rating for right foot hallux valgus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71, DC 5280.

5. The criteria for an initial compensable rating for right foot hammer toe are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5282.

6. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.85, DC 6100.

7. The criteria for entitlement to an effective date prior to June 13, 2011, for the grant of service connection for bilateral foot callous have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.310, 3.40. 

8. The criteria for entitlement to an effective date prior to June 13, 2011, for the grant of service connection for right foot hallux have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.310, 3.40. 

9. The criteria for entitlement to an effective date prior to June 13, 2011, for the grant of service connection for right foot metatarsalgia have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.310, 3.40. 

10. The criteria for entitlement to an effective date prior to June 13, 2011, for the grant of service connection for right second, third, fourth, and little hammer toes have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.310, 3.40. 

11. The criteria for entitlement to an effective date prior to June 13, 2011, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.310, 3.40. 

12.  The criteria for entitlement to an effective date prior to June 13, 2011, for the grant of service connection for emphysema have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.310, 3.40. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In the October 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on April 23, 2024. A copy of the transcript is associated with the Veteran's claims file.

Therefore, the Board may only consider the evidence of record at the time of the August 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing.
; 38 C.F.R. §§ 3.310, 3.40. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In the October 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on April 23, 2024. A copy of the transcript is associated with the Veteran's claims file.

Therefore, the Board may only consider the evidence of record at the time of the August 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

As background, an August 2020 Board decision granted service connection for emphysema, hearing loss, right foot metatarsalgia, right foot hammer toes, right hallux valgus, and right foot calluses. An August 2020 rating decision granted service connection for emphysema, bilateral hearing loss, right foot metatarsalgia, right foot hammer toes, right hallux valgus, and bilateral foot calluses. The AOJ assigned an effective date of June 13, 2011, for all disabilities. In October 2020, the Veteran timely appealed. On the October 2020 VA Form 10182, the Veteran stated he was appealing the assigned ratings and effective dates of emphysema, bilateral hearing loss, right foot metatarsalgia, right foot hammer toes, right hallux valgus, and bilateral foot calluses.   

Increased Rating Claims

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 
 when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.  

The Veteran is competent to report symptoms and experiences observable by their senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

If the positive and negative evidence is evenly or approximately balanced, the claimant receives the benefit of the doubt. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another, is the benefit-of-the-doubt doctrine not for application).

The Board considered the entire record, including the Veteran's VA clinical records. The Board will discuss the evidence pertinent to the rating criteria and the current disability. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (The Board must review the entire record but does not have to discuss each piece of evidence).

1. Entitlement to an increased rating for bilateral foot calluses.

The Veteran asserts that a compensable rating is warranted for his bilateral foot calluses.

The Veteran's service-connected bilateral foot calluses are currently evaluated as noncompensable under DC 7819, benign skin neoplasm. Under 38 C.F.R. § 4.118, DC 7819, benign skin neoplasms are to be evaluated based on disfigurement of the head, face, or neck (DC 7800), scars (DC 7801, 7802, 7803, 7804, or 7805), or impairment of function. However, the February 2012 VA examination found that the Veteran did not have benign or malignant neoplasm or metastases related to his bilateral foot calluses. Additionally, his bilateral foot calluses do not result in disfigurement of the head, face, neck, or scars. 

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and the demonstrated symptomatology. See id. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Where a different diagnostic code more appropriately reflects the nature of the Veteran's disability picture, and the change does not reduce the Veteran's level of compensation, the Board has the authority to change the assigned diagnostic code. See Butts, 5 Vet. App. at 539. Thus, based on the foregoing, the Board finds that the Veteran's bilateral foot calluses are more accurately reflected by a single diagnostic code relating to injuries of the foot, DC 5284, as the evidence demonstrates that the Veteran's callus disability is not productive of scarring and the
 diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Where a different diagnostic code more appropriately reflects the nature of the Veteran's disability picture, and the change does not reduce the Veteran's level of compensation, the Board has the authority to change the assigned diagnostic code. See Butts, 5 Vet. App. at 539. Thus, based on the foregoing, the Board finds that the Veteran's bilateral foot calluses are more accurately reflected by a single diagnostic code relating to injuries of the foot, DC 5284, as the evidence demonstrates that the Veteran's callus disability is not productive of scarring and the documented symptoms of pain and function loss are more appropriately and favorably rated by DC 5284, which specifically provides subjective and objective rating criteria for the type of injury, symptomatology, and functional impairment resulting from foot injuries. Accordingly, the Board will address the Veteran's service-connected bilateral foot calluses pursuant to DC 5284.

DC 5284 provides a 10 percent rating for impairment of moderate degree, a 20 percent rating for moderately severe impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. A note directs that the actual loss of use of the foot should be rated as 40 percent disabling. 

Descriptive words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. As with any regulatory interpretation where the terms are not defined in the regulation, we presume those terms carry their ordinary dictionary meaning. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018). The Board finds that these terms are unambiguous and, therefore, a plain dictionary meaning is an appropriate definition. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see also 38 C.F.R. § 4.6 (noting, in general, the Board does not evaluate evidence by applying a mechanical formula, but rather conscientiously to the end that its decisions are equitable and just).

According to Merriam-Webster's Collegiate Dictionary, "mild" means "gentle in nature or behavior," and "moderate" as "tending toward the mean or average amount or dimension." Finally, "severe" is "of a great degree" or "very painful or harmful." See www.merriam-webster.com/dictionary. (last visited April 2026).

Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.  

Turning to the evidence, the Veteran was afforded a VA examination in February 2012. The examiner diagnosed the Veteran with foot calluses. The Veteran reported being treated by VA for painful chronic calluses and keratoses on both feet. The examiner noted that the Veteran has multiple areas of significant callousing and keratoses which make walking painful. Regarding functional impact, the examiner stated that the Veteran currently cannot stand for any length of time without experiencing pain. The examiner noted that the Veteran cannot walk more than one block without experiencing pain in his feet and that lifting and carrying any significant weight creates pressure on his soles and creates pain. See February 2012 VA Examination. 

An examination of the remaining evidence provides some insight regarding the severity of the Veteran's foot calluses. A May 2013 clinic note states that the Veteran was seen complaining of painful calluses on both feet. See June 2019 VA Treatment Records, page 24. An October 11, 2013, orthotics consult note states that the Veteran was seen for evaluation to be measured for non-diabetic ED shoes and custom accommodative inserts. At the appointment, the Veteran reported that he had been using over the counter inserts and cutting out holes for the calluses. The Veteran reported that he has foot pain all the time and by the end of the day the pain is worse. Id. at page 14. 

At the April 2024 hearing, the Veteran testified that he continues to have foot calluses on both feet. The Veteran testified that some of the calluses are very painful. The Veteran stated that he has to shave them about every four days. The Veteran said when pressure is applied to them, the pain can be really excruciating and very uncomfortable. The Veteran stated that he wears two layers of pads in his shoes with a hole cut in the middle to relieve pressure. See April 2024 Hearing Transcript.  

After
 over the counter inserts and cutting out holes for the calluses. The Veteran reported that he has foot pain all the time and by the end of the day the pain is worse. Id. at page 14. 

At the April 2024 hearing, the Veteran testified that he continues to have foot calluses on both feet. The Veteran testified that some of the calluses are very painful. The Veteran stated that he has to shave them about every four days. The Veteran said when pressure is applied to them, the pain can be really excruciating and very uncomfortable. The Veteran stated that he wears two layers of pads in his shoes with a hole cut in the middle to relieve pressure. See April 2024 Hearing Transcript.  

After reviewing the record, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the symptoms associated with the Veteran's service-connected bilateral foot calluses are best described as severe, and therefore a rating of 30 percent is warranted. 38 C.F.R. § 4.71a, DC 5284. Significantly, the Board notes that the February 2012 examiner noted multiple areas of significant callousing and keratoses which make walking painful. The evidence establishes that starting from the filing of his supplemental claim up to his hearing the Veteran continuously reported very painful calluses which limited his mobility. The Veteran is competent to report the severity of his pain, and the Board finds no reason to doubt the credibility of his statements. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the foregoing evidence establishes that the Veteran's callus disability is productive of severe foot disability, and that a rating of 30 percent under DC 5284 is warranted.

As to whether a higher rating is warranted, the Board notes that a 30 percent rating is the maximum warranted under DC 5284, as the record does not demonstrate actual loss of the feet. 

In sum, a 30 percent rating, but no higher, for bilateral foot calluses is warranted. 

2. Entitlement to an increased rating for emphysema.

The Veteran's emphysema is currently assigned a 30 percent rating pursuant to  DC 6603. 

Under DC 6603, a 10 percent rating is warranted when the FEV-1 of 71 to 80 percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66 to 80 percent predicted. 

A 30 percent rating is warranted when the FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56 to 65 percent predicted.

 A 60 percent rating is warranted when FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). 

A 100 percent rating is warranted when FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40 percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy.

Section 38 C.F.R. § 4.96(d), titled "Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845" includes the following provisions. Pulmonary function tests (PFTs) are required to rate respiratory conditions except in certain situations. If a DLCO (SB) test is not of record, rating should be based on alternative criteria as long as the examiner states why the DLCO (SB) test would not be useful or valid in a particular case. When the PFTs are not consistent with clinical findings, rating should generally be based on the PFTs. Post-bronchodilator studies are required when PFTs are done for rating purposes with some exceptions. When rating based on PFTs, post-bronchodilator results are to be used unless they are poorer than the pre-bronchodilator results, then the
 provisions. Pulmonary function tests (PFTs) are required to rate respiratory conditions except in certain situations. If a DLCO (SB) test is not of record, rating should be based on alternative criteria as long as the examiner states why the DLCO (SB) test would not be useful or valid in a particular case. When the PFTs are not consistent with clinical findings, rating should generally be based on the PFTs. Post-bronchodilator studies are required when PFTs are done for rating purposes with some exceptions. When rating based on PFTs, post-bronchodilator results are to be used unless they are poorer than the pre-bronchodilator results, then the pre-bronchodilator values should be used for rating purposes. When the results of different PFTs (FEV-1, FVC, etc.) are disparate, the test result that the examiner states most accurately indicates the level of disability should be used for rating, and if the FEV-1 and the FVC are both greater than 100 percent, a compensable rating based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96(d).

The Veteran underwent a VA examination in February 2012. The Veteran reported that he began to have breathing problems in-service that have continued until today. The Veteran stated that he coughs a great deal and produces secretions. The examiner noted that the Veteran's condition does not require the use of oral, parenteral corticosteroid or inhaled medications. The examiner stated that the Veteran's condition does not require oral bronchodilators or outpatient oxygen therapy. PFTs were performed and showed FVC at 99 percent predicted, FEV-1 at 92 percent predicted, and FEV-1/FVC at 68 percent predicted. The examiner reported that FEV-1/FVC results most accurately reflected his level of disability. The examiner stated that post-bronchodilator testing has not been completed because pre-bronchodilator results were normal. The examiner stated that the Veteran's condition does not impact his ability to work. See February 2012 VA examination.   

At the April 2024 hearing, the Veteran testified that his emphysema causes shortness of breath. The Veteran said he is unable to walk more than 100 to 150 feet without losing his breath and that he cannot do a lot of outside work. The Veteran said he has coughing spells about once or twice a week, during which he expels mucus. The Veteran testified that he uses an inhaler once or twice a day. The Veteran said he has oxygen that stays at home and uses as needed. The Veteran stated he does not use any medications for his emphysema. See April 2024 Hearing Transcript. 

In support of service connection for emphysema, the Veteran submitted a positive nexus statement from a private doctor, Dr. M.F. Dr. M.F. stated that he reviewed the Veteran's VA medical records and personal records. Dr. M.F. stated "It is as likely as not that there is a nexus between this veteran's emphysema and his exposure in the military to asbestos. For his emphysema # 6603 at 30% disability". The Board acknowledges that Dr. M.F. did not detail why a 30 percent rating was appropriate, however, the Board notes that Dr. M.F. stated he reviewed all of the medical evidence in this case. See August 2019 Third party Correspondence. 

The Board finds the February 2012 VA examination to be competent and credible, as the examiner is qualified to offer medical diagnoses, statements, and opinions. The Board finds that this examination adequately addresses the extent of the Veteran's respiratory disability, because the examiner reviewed the claims file and conducted his own testing using reliable principles and methods in order to reach a conclusion. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board affords the VA examination great probative weight, as the examiner conducted thorough testing of the Veteran's respiratory disability using reliable principles and methods and offered a rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).

The next-highest rating of 60 percent is not warranted under DC 6603. Under this diagnostic code, a 60 percent rating is warranted for a FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit).
 the examiner conducted thorough testing of the Veteran's respiratory disability using reliable principles and methods and offered a rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).

The next-highest rating of 60 percent is not warranted under DC 6603. Under this diagnostic code, a 60 percent rating is warranted for a FEV-1 of 40 to 55 percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). The evidence does not establish these results or similar functional impairment. Thus, a 60 percent warranting is not appropriate. 

The Board acknowledges the Veteran's testimony that he uses an inhaler and has oxygen at home. However, the Veteran's VA Treatment records prior to the August 2020 rating decision do not contain any information regarding an inhaler or oxygen therapy.  Accordingly, his testimony is not supported by the medical evidence of record. Furthermore, under the Appeals Modernization Act (AMA) framework the Board may only remand a claim for a pre-decisional duty to assist error. See 38 C.F.R. § 20.802(a). In this case, while the Veteran's testimony at the April 2024 hearing may indicate that his disability worsened since the February 2012 VA examination or the August 2019 private opinion from Dr. M.F., there is no evidence prior to the August 2020 rating decision that suggests a worsening of his disability since his February 2012 VA examination. Accordingly, the Board has no basis to remand the Veteran's claim. To that extent, the Veteran and his representative are reminded that he is free to submit a supplemental claim and submit or identify any additional evidence to be considered in support of his claim.   

While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has worsened sufficiently to meet the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Although the Veteran believes that he meets the criteria for a higher disability rating, his complaints coupled with the medical findings do not meet the schedular requirements for an evaluation higher than the 30 percent rating granted here.

Accordingly, the evidence persuasively weighs against a higher disability rating for emphysema. The benefit of the doubt doctrine is therefore not for application and the claim is denied. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 776.

3. Entitlement to an initial compensable rating for right foot metatarsalgia.

The Veteran's right foot metatarsalgia with arthritis is currently assigned a noncompensable rating pursuant to DC 5279. 

DC 5279 provides a maximum rating of 10 percent for metatarsalgia, anterior (Morton's disease), unilateral or bilateral, is rated a 10 percent disabling. There is no higher rating available under DC 5279

The Board has a duty to acknowledge and consider all diagnostic codes that are potentially applicable when evaluating a veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). However, the Veteran has been diagnosed with and is in receipt of service connection for right foot metatarsalgia, which is specifically listed in the Rating Schedule. Thus, rating by analogy is not appropriate in this case. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("when a condition is specifically listed in the Schedule, it may not be rated by analogy").

In addition, a separate rating under DC 5003, which pertains to degenerative would violate the rule against pyramiding as the Veteran's pain on use of the right foot is already compensated under DC 5284.

As the Veteran is currently in receipt of the highest available ratings under DC 5280, and the evidence of record does not indicate that referral for an extraschedular rating is warranted, further discussion as to whether an initial disability rating higher than 10 percent under DC 5279 is not necessary.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial rating higher than 10 percent is warranted. Rather, the evidence persuasively weighs against an increased rating higher than 10 percent. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch, 21 F.4th at 781
 available ratings under DC 5280, and the evidence of record does not indicate that referral for an extraschedular rating is warranted, further discussion as to whether an initial disability rating higher than 10 percent under DC 5279 is not necessary.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial rating higher than 10 percent is warranted. Rather, the evidence persuasively weighs against an increased rating higher than 10 percent. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch, 21 F.4th at 781-82.

4. Entitlement to an initial compensable rating for right foot hallux valgus.

The Veteran's right foot hallux valgus is currently rated noncompensable under DC 5280.

Under DC 5280, a maximum 10 percent rating is assigned for unilateral hallux valgus when the condition is post-operative with resection of metatarsal head or when the condition is severe if equivalent to amputation of the great toe. DC 5280. 

The February 2012 VA examination diagnosed bilateral hallux valgus. The examiner noted the Veteran's symptoms to be mild or moderate. The examiner stated that the Veteran has not had surgery for hallux valgus. The examiner did not indicate that the Veteran's symptoms were severe with function equivalent to amputation of great toe. See February 2012 VA examination. 

The evidence establishes that the Veteran has not had surgery for hallux valgus. Additionally, the evidence of record does not note symptomatology that more nearly approximates unilateral hallux valgus that is severe with function equivalent to amputation of great toe. 

The Board acknowledges that the Veteran's right foot hallux valgus contributes to right foot pain. However, the Veteran's right foot pain is already compensated under DC 5284, which is not explicitly limited to a particular area of the foot. Thus, assigning separate compensable ratings for foot pain from hallux valgus would constitute impermissible "pyramiding." 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided); Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (separate ratings are permissible where none of the symptomatology for one condition is duplicative of or overlapping with the symptomatology of another condition). Accordingly, separate compensable ratings for bilateral hallux valgus cannot be warranted, even when considering pain and functional loss. Essentially, the Veteran is already compensated for his foot pain, generally, under DC 5284.

As such, the Board finds that the current severity of the Veteran's bilateral hallux valgus more nearly approximates the current noncompensable rating. The evidence persuasively weighs against an initial compensable rating. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch, 21 F.4th at 781-82.

5. Entitlement to an initial compensable rating for right second, third, fourth, and little hammer toes.

The Veteran's right foot hammer toes are rated under 38 C.F.R. § 4.71a, DC 5282. Under DC 5282, a noncompensable rating is warranted for a hammer toe of a single toe, and a maximum 10 percent rating is warranted for hammer toe on all toes unilaterally without claw foot. 38 C.F.R. § 4.71a, DC 5282.

The February 2012 VA examination diagnosed the Veteran with hammer toes. Examination revealed hammer toes of the right second, third, fourth, and little toes. At the April 2024 hearing, the Veteran testified regarding his hammer toes. The Veteran confirmed that his hammer toes included all toes except for the great toe. See April 2024 Hearing Transcript, page 15.  

Based on the foregoing, the symptoms of the disability have not, throughout the appeal period, more nearly approximated hammer toe on all toes or unilaterally without claw foot. Rather, both the Veteran's statements and the medical evidence reflect that hammer toes have been limited to the right second, third, fourth, and little toes. Therefore, an initial compensable rating is not warranted under DC 5282.

As DC 5282 specifically governs the evaluation of the Veteran's disability, the Board is prohibited from assigning a separate higher rating under another DC for his right foot hammertoes. Copeland, 27 Vet. App. at
 all toes except for the great toe. See April 2024 Hearing Transcript, page 15.  

Based on the foregoing, the symptoms of the disability have not, throughout the appeal period, more nearly approximated hammer toe on all toes or unilaterally without claw foot. Rather, both the Veteran's statements and the medical evidence reflect that hammer toes have been limited to the right second, third, fourth, and little toes. Therefore, an initial compensable rating is not warranted under DC 5282.

As DC 5282 specifically governs the evaluation of the Veteran's disability, the Board is prohibited from assigning a separate higher rating under another DC for his right foot hammertoes. Copeland, 27 Vet. App. at 337. Moreover, the evidence of record does not indicate, nor does the Veteran suggest, that there are additional diagnoses for right foot that are already not service connected.  

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial compensable rating is warranted. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch, 21 F.4th at 781-82.

6. Entitlement to a compensable rating for bilateral hearing loss.

The Veteran is seeking an initial compensable evaluation for his bilateral hearing loss.

Ratings of hearing loss range from noncompensable to 100 percent are based on organic impairment of hearing acuity as measured by speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 cycles per second.

To rate the degree of disability for service-connected hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from level I, for essentially normal acuity, to level XI, for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100, Table VI. To establish entitlement to an increased rating for hearing loss, certain minimum levels of the combination of the percentage of speech discrimination loss and average pure tone decibel loss must be met.

Under 38 C.F.R. § 4.86, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000 and 4000 Hz) is 55 decibels (dB) or more, Table VI or Table VIA is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86 (a). Additionally, when the pure tone threshold is 30 dB or less at 1000 Hz, and 70 dB or more at 2000 Hz, Table VI or Table VIA is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher Roman Numeral. 38 C.F.R. § 4.86 (b).

Disability ratings for hearing impairment are derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. The results are then charted on Table VI, Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII, as set out in the Rating Schedule. 38 C.F.R. § 4.85. An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels (dB) or more, or puretone thresholds of 30 dB or less at 1000 Hertz and 70 dB or more at 2000 Hertz. 38 C.F.R. § 4.86.

Turning to the evidence, a February 2012 VA examination noted Maryland CNC Word List speech recognition scores and puretone thresholds, in decibels, as follows:

HERTZ

	1000	2000	3000	4000	Average	CNC

RIGHT	20	20	40	55	34	96%

LEFT	30	45	65	85	56	92%

Based on the puretone thresholds and Maryland CNC results described above, the right ear would have a numerical designation of no worse than Level I, and the left ear would have a numerical designation of no worse than Level I. Following the percentage evaluations listed in Table VII, the evaluation results in a noncompensable rating. See February 2012 VA Examination. 

At the April 
2012 VA examination noted Maryland CNC Word List speech recognition scores and puretone thresholds, in decibels, as follows:

HERTZ

	1000	2000	3000	4000	Average	CNC

RIGHT	20	20	40	55	34	96%

LEFT	30	45	65	85	56	92%

Based on the puretone thresholds and Maryland CNC results described above, the right ear would have a numerical designation of no worse than Level I, and the left ear would have a numerical designation of no worse than Level I. Following the percentage evaluations listed in Table VII, the evaluation results in a noncompensable rating. See February 2012 VA Examination. 

At the April 2024 hearing, the Veteran provided testimony regarding his hearing loss. Specifically, including his testimony that he has trouble discerning voices, watches TV at a volume louder than most people would find comfortable. See April 2024 Hearing Transcript, page 16.

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's description of his hearing problems. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann, 3 Vet. App. at 345.

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

Therefore, the Board finds that the Veteran has no worse than Level I in the right ear and Level I in the left ear, which results in a noncompensable rating. Thus, although the Veteran feels he is entitled to a compensable rating, the evidence during this period on appeal does not meet the threshold for a compensable rating. Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to an initial compensable rating for hearing loss. As the most probative evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; see also Lynch, 21 F.4th at 776.

Earlier Effective Date Claims

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. 

In the case of supplemental claims received more than one year after an AOJ decision, the effective date of an award may be "[no] earlier than the date of receipt of the supplemental claim." See 38 U.S.C. § 5110(a)(3). There is no provision in either statute or VA regulations that allows for an earlier effective date for a previously denied claim unless a clear and unmistakable error (CUE) was committed in a prior decision, or unless the new and relevant evidence required to readjudicate the claim resulted from receipt of additional relevant service department records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156 (c).

Prior to March 24, 2015, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a) (2014).

The Veteran generally contends that he is entitled to an effective date prior to June 13, 2011, for the grant of service connection for emphysema, bilateral hearing loss, right foot metatarsalgia, right foot hammer toes, right hallux valgus, and bilateral foot calluses. See October 2020 VA Form 10182. The Board notes that no arguments were presented at the
).

Prior to March 24, 2015, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a) (2014).

The Veteran generally contends that he is entitled to an effective date prior to June 13, 2011, for the grant of service connection for emphysema, bilateral hearing loss, right foot metatarsalgia, right foot hammer toes, right hallux valgus, and bilateral foot calluses. See October 2020 VA Form 10182. The Board notes that no arguments were presented at the April 2024 hearing regarding entitlement to an earlier effective date. 

7. Entitlement to an earlier effective date for bilateral foot callous.

8. Entitlement to an earlier effective date for right foot hallux valgus.

9. Entitlement to an earlier effective date for right foot metatarsalgia.

10. Entitlement to an earlier effective date for right second, third, fourth, and little hammer toes.

11.  Entitlement to an earlier effective date for bilateral hearing loss. 

A February 2004 rating decision by the AOJ denied service connection for right foot condition and bilateral hearing loss. This decision became final as no new and material evidence, or no notice of disagreement was filed within one year following this decision. 

On June 13, 2011, the Veteran submitted a VA Form 21-526 Veterans Application for Compensation or Pension seeking service connection for right foot condition and bilateral hearing loss. The Veteran then continuously pursued the claims until the Board granted service connection in August 2020. 

As noted above, the rules for effective dates state that an effective date based on a claim reopened after final adjudication shall not be earlier than the date of receipt of the claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). Here, the AOJ assigned an effective date the day that the Veteran filed his claim to reopen. It is not possible to assign an effective date earlier than June 13, 2011, for the grant of service connection for these claims because the prior rating decisions had become final and no new and material evidence or notice of disagreement had been filed to keep the claim open.

In sum, as the Veteran was awarded service connection following a claim to reopen after a prior final adjudication, the earliest effective date he could receive was the date of receipt of his claim which was June 13, 2011. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). The Veteran's claim for an earlier effective date is denied.

12. Entitlement to an earlier effective date for emphysema.

As outlined above, generally the effective date of an award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400.  

The Veteran first submitted a claim for emphysema on June 13, 2011. In August 2020, the Veteran was awarded service connection for emphysema and an effective date of June 13, 2011, was assigned. 

The Board does not find any evidence to support an earlier effective date. After a thorough review of the Veteran's entire file, the Board concludes that there is no communication in the record that may reasonably be construed to be a new claim, formal or informal, for emphysema prior to June 13, 2011. Furthermore, neither the Veteran nor his representative have provided any specific arguments for the assignment of an earlier effective date.  

Although the Board is sympathetic to the Veteran's appeal for an earlier effective date for the award of service connection, the Board is bound by the applicable statutes and regulations. 38 U.S.C. § 7104(c); 38 C.F.R. § 20.101(a). Those laws and regulations provide specific guidance as to the documents on which effective dates may be based, and the fact that a disability or disabilities are of longstanding nature does not warrant a different result under these laws and regulations.  

As the weight of the probative evidence is against the claim, entitlement to an effective date earlier than June 13, 2011, for entitlement to service connection for emphysema is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

Entitlement to a TDIU.

The Board finds that the issue of entitlement to a TDIU was raised as part and parcel of his claim seeking service
 Those laws and regulations provide specific guidance as to the documents on which effective dates may be based, and the fact that a disability or disabilities are of longstanding nature does not warrant a different result under these laws and regulations.  

As the weight of the probative evidence is against the claim, entitlement to an effective date earlier than June 13, 2011, for entitlement to service connection for emphysema is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

Entitlement to a TDIU.

The Board finds that the issue of entitlement to a TDIU was raised as part and parcel of his claim seeking service connection for a stroke. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). 

A review of the record establishes that an opinion has not been obtained addressing the individual or cumulative impact that his service-connected disabilities have on his ability to maintain employment. This is a pre-decisional duty to assist error requiring remand under the AMA. Accordingly, a remand is warranted to correct a duty to assist error that occurred prior to the rating decision on appeal. See Barr v. Nicholson, 21 Vet. App. 303 (2007).

Additionally, the Board finds adjudication of the issue by the AOJ on the merits in the first instance is necessary to preserve the Veteran's right to one review on appeal. Cf. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010).

The matters are REMANDED for the following action:

Schedule the Veteran for a VA examination to determine the impact his service-connected disabilities, either individual or cumulatively, have on his ability to obtain or retain employment, including sedentary employment, during the appeal period. The examiner must be provided access to the electronic claims file. All findings should be reported in detail and all functional impairment caused by the service-connected disorders should be detailed.

 

Cory M. Picton

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Welch, Joshua H.

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.