TINNITUS

D. SMART · 2026 · Case ID: A26039268

MIXED

Summary

The veteran, who served from August 1980 to June 1984, appeals the denial of service connection for hammer toes of both feet and increased ratings for painful and surgical scars on his feet. The Board granted service connection for tinnitus, concurring with a subsequent December 2025 rating decision. For hammer toes, the Board found that the evidence persuasively weighed against a compensable rating. While acknowledging the veteran's reports of pain and functional loss, the Board determined the severity did not meet the criteria for a higher rating under Diagnostic Code 5282, nor could the condition be rated under analogous codes as it is specifically listed in the schedule. For scars, the Board found that while the veteran had five or more painful scars (warranting a 30% rating under DC 7804), these were not unstable, did not have underlying soft tissue damage, and did not cause additional functional limitation beyond what was already rated. Therefore, the claims for hammer toes and increased ratings for scars were denied.

Rationale

Concurs with subsequent favorable rating decision; Tinnitus found related to active military service

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250409-537288

Full Decision Text

Citation Nr: A26039268
Decision Date: 04/28/26 Archive Date: 04/28/26

DOCKET NO. 250409-537288
DATE: April 28, 2026

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to a compensable disability rating for hammer toes of the left foot is denied.

Entitlement to a compensable disability rating for hammer toes of the right foot is denied.

Entitlement to a disability rating in excess of 30 percent for painful scars of the feet is denied.

Entitlement to a compensable disability rating for surgical scars of both feet is denied.

FINDINGS OF FACT

1. The Veteran's tinnitus is related to his active military service.

2. The Veteran's hammer toes of the left foot did not manifest with hammer toes across all five toes.

3. The Veteran's hammer toes of the right foot did not manifest with hammer toes across all five toes.

4. The Veteran is receiving the maximum schedular rating for five or more scars that are unstable or painful.

5. The Veteran's scars of the feet, to include surgical scars, did not manifest over an area or areas of at least 929 square cm, are not associated with underlying soft tissue damage, and do not result in any other disabling effects.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to a compensable disability rating for hammer toes of the left foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282.

3. The criteria for entitlement to a compensable disability rating for hammer toes of the right foot have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282.

4. The criteria for entitlement to a disability rating in excess of 30 percent for painful scars of the feet have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804.

5. The criteria for entitlement to a compensable disability rating for surgical scars of both feet have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active-duty service from August 1980 to June 1984.

The issues are on appeal from a rating decision issued in March 2025. The Veteran submitted a notice of disagreement in April 2025 electing the evidence review lane.

Therefore, the Board may only consider the evidence of record at the time of the March 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board acknowledges that on the VA Form 19182 the Veteran listed the
did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

The Board acknowledges that on the VA Form 19182 the Veteran listed the issues of increased ratings for bilateral hallux valgus. However, the March 2025 rating decision deferred adjudication of those issues. The Board notes that the issues were adjudicated in a June 2025 rating decision and the one-year time period has not lapsed if the Veteran would like to appeal that decision.

The Veteran also listed the issue of service connection for hearing loss. However, the appeal of the denial-of-service connection is timely as more than one year has passed since the AOJ adjudicated the issue.

As such, the Board will not address these issues further in this decision.

1. Entitlement to service connection for tinnitus.

The Veteran contends that he has had bilateral tinnitus since his active service. The issue was granted in a subsequent December 2025 rating decision.

The Board concurs and reiterates the conclusions in the December 2025 rating decision. The Board is bound by favorable findings in AOJ decisions. As such, the Board finds that service connection for bilateral tinnitus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

2. Entitlement to a compensable disability rating for hammer toes of the left foot.

3. Entitlement to a compensable disability rating for hammer toes of the right foot.

The Board will address the left and right hammer toes together as they stem from the same legal and factual basis.

The Veteran is seeking a higher rating for his left and right hammer toes.

The Veteran's hammer toes are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5282, for hammer toe. Under Diagnostic Code 5282, a noncompensable rating is warranted for hammer toes of single toes. A maximum 10 percent rating is warranted for hammer toe of all toes, unilateral, without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282.

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 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).

The Board notes that it has reviewed all the evidence in the record relevant to the period on review. This includes an October 2024 disability benefits questionnaire (DBQ), as well as private and VAMC treatment notes. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

The Board finds that the evidence of record persuasively weighs against a compensable rating for hammer toes of the left or right foot. In an October 2024 DBQ, the examiner noted hammer toes of the 2nd, 3rd, and 4th toes on the right and the 3rd, 4th, and 5th toes on the left. In separate October 2024 treatment records, a private examiner noted hammer toe of the 2nd, 3rd, 4th, and 5th toes bilaterally. No treatment records show hammertoe of the great toe on either foot.

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to restriction of the toes. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that would not result in symptoms more nearly approximating unilateral hammer toe of all toes.

The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court's holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id.

Here, the Veteran's disability is specifically listed under the rating schedule and therefore cannot be rated under a different Diagnostic Code. However, the Veteran does have other service-connected disabilities with distinct manifestations. In this regard, Diagnostic Codes 5269, 5276, and 5280 are separately assigned and are not considered in this decision. These separate ratings address the Veteran's bilateral pes planus, plantar fasciitis, hallux valgus, bunionectomy, hallux rigidus, cheilectomy, exostectomy, and degenerative arthritis.

The Veteran's hammer toes do not manifest with any separately ratable symptoms or diagnoses.

In conclusion, the Board finds that the evidence of record persuasively weighs against a compensable rating for left or right hammer toes. As the 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.

4. Entitlement to a disability rating in excess of 30 percent for painful scars of the feet.

5. Entitlement to a compensable disability rating for surgical scars of
omy, exostectomy, and degenerative arthritis.

The Veteran's hammer toes do not manifest with any separately ratable symptoms or diagnoses.

4. Entitlement to a disability rating in excess of 30 percent for painful scars of the feet.

5. Entitlement to a compensable disability rating for surgical scars of both feet.

The Board will address the Veteran's scars together as they stem from the same legal and factual basis. Under the rating criteria for scars, all scars are rated together.

The Veteran is seeking a higher rating for all scars of his feet, to include surgical scars.

The Veteran's scars are rated under Diagnostic Code 7804 for unstable or painful scars.

Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id.

As the Veteran is in receipt of the highest schedular rating under Diagnostic Code 7804, there is no basis to award a higher evaluation under that criteria.

The Veteran's scars are also rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804.

Diagnostic Code 7805 instructs that any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code.

The Board notes that it has reviewed all the evidence in the record relevant to the period on review. This includes a January 2025 VA examination, an October 2024 DBQ of the feet, as well as private and VAMC treatment notes. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Hence, the Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

The Board finds that the evidence of record persuasively weighs against the assignment of a compensable rating for the Veteran's scars under Diagnostic Code 7805 as there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. The Veteran's scars are painful, as acknowledged above. The Veteran's foot pain, however, is already separately rated. Additionally, the scars do not cause any additional limitation of function beyond the significant limitations for which the Veteran is already service connected.

The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran's scars are not of the head, face, or neck and are not associated with underlying soft tissue damage, and are not covering an area of 144 square inches or greater. Therefore, Diagnostic Codes 7800, 7801, and 7802 are inapplicable.

The October 2024 examiner found that the Veteran's scars were not painful or unstable, did not have a total area equal to or greater than 39 square cm, and were not located on the head, face, or neck. The January 2025 examiner noted five or more painful scars. The scars were not unstable, and no scar had underlying soft tissue damage. The scars measured 11.4 by 0.3 cm, 6.3 by 0.2 cm, 14 by 0.3 cm, 7.6 by 0.1 cm, and 4 by 0.1 cm. The scars covered an area of 10.4 cm square. The examiner found no limitation of function due to the scars. The Veteran's treatment records do not contradict these findings.

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain and sc
scars were not unstable, and no scar had underlying soft tissue damage. The scars measured 11.4 by 0.3 cm, 6.3 by 0.2 cm, 14 by 0.3 cm, 7.6 by 0.1 cm, and 4 by 0.1 cm. The scars covered an area of 10.4 cm square. The examiner found no limitation of function due to the scars. The Veteran's treatment records do not contradict these findings.

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain and scarring, and these reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran does not assert, and medical records do not show that the Veteran's scars manifested by any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable rating for surgical scars under Diagnostic Code 7805 and against the claim for a disability rating in excess of 30 percent under Diagnostic Code 7804. As the 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.

D. SMART

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Veresink, Patricia

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.

Analyze in VA Law Explorer