Citation Nr: 0921449 Decision Date: 06/08/09 Archive Date: 06/16/09 DOCKET NO. 05-39 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Assignment of disability ratings for service-connected residuals of frostbite of the hands and feet, for the purposes of accrued benefits. REPRESENTATION Appellant represented by: Robert W. Legg, Esquire ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1946 to November 1947 and in the United States Marine Corps from July 1950 to May 1951. The Veteran died in January 2008. The appellant is the Veteran's surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Procedural history In a December 1951 rating decision, the RO [then located in Oklahoma City] denied the Veteran's claim of entitlement to service connection for frozen feet and hands. The Veteran was informed of that decision and of his appeal rights by letter from the RO dated December 19, 1951. He did not appeal. In a June 2003 RO rating decision, service connection was granted for cold injury residuals, effective November 1, 2002. In the July 2004 rating decision which forms the basis for this appeal, the RO denied the claim of CUE in the December 1951 rating decision in failing to grant service connection for frozen feet and hands. The Veteran perfected an appeal of that denial. In December 2006, the Board dismissed the Veteran's claim of CUE in the December 1951 VA rating decision in failing to grant service connection for frozen feet and hands. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). While the appeal was pending at the Court, the Veteran died. The Court granted a motion to substitute the appellant and continue the appeal. See the Court's December 2008 memorandum decision, page 1. In December 2008, the Court reversed the Board's dismissal of the claim of CUE in the December 1951 VA rating decision and remanded the claim for the Board to assign an appropriate date for the award of service connection for frostbite of the hands and feet, appropriate disability rating(s), and effective date(s) for those disability rating(s). In May 12, 2009, the Board wrote a letter to the appellant's counsel and informed him that he had the opportunity to submit additional argument and/or evidence in support of the appellant's appeal before the Board proceeded with readjudication. The appellant's counsel responded via a brief dated May 15, 2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). Issues not on appeal In its December 2006 decision, the Board dismissed a claim of CUE in the December 1951 VA rating decision in failing to assign a compensable rating for psychoneurosis. In its December 2008 memorandum decision, the Court noted that the appellant's counsel explicitly stated that the issue of CUE in denying a compensable rating for psychoneurosis was not being appealed. The Court determined that the claim was deemed to have been abandoned. See Bucklinger v. Brown, 5 Vet. App. 435, 436 (1993). In an August 2008 rating decision, the RO denied service connection for the cause of the Veteran's death and entitlement to Dependency and Indemnity Compensation benefits under 38 U.S.C.A. § 1318. To the Board's knowledge, the appellant has not appealed these determinations. Those issues are therefore not on appeal. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. FINDINGS OF FACT 1. On May 17, 1951, the Veteran separated from active service. 2. On May 24, 1951, the Veteran filed a claim for service connection for residuals of frostbite of the hands and feet. 3. The objective clinical findings show that from May 18, 1951 to October 31, 2002, the Veteran's service-connected residuals of frostbite of the hands and feet were clinically asymptomatic and were not manifested by chilblains on the upper and lower extremities. 4. The objective clinical findings show that from January 12, 1998 to October 31, 2002, the Veteran's service-connected residuals of frostbite of the hands were manifested by complaints of pain in both hands. 5. The objective clinical findings show that from January 12, 1998 to March 21, 2000, the Veteran's service-connected residuals of frostbite of the feet were manifested by complaints of pain and cold sensitivity in both feet. 6. The objective clinical findings show that from March 22, 2000 to October 31, 2002, the Veteran's service-connected residuals of frostbite of the feet were manifested by complaints of pain and cold sensitivity in both feet along with nail abnormalities and tissue loss. CONCLUSIONS OF LAW 1. The effective date of the grant of service connection for residuals of frostbite of the hands and feet is May 18, 1951. 38 U.S.C.A. §§ 5110, 5121 (West 2002); 38 C.F.R. §§ 3.400, 3.1000 (2008). 2. The criteria for a disability rating of zero percent for the Veteran's residuals of frostbite of the hands and feet were met from May 18, 1951 to January 11, 1998. 38 U.S.C.A. §§ 1155, 5121 (West 2002); 38 C.F.R. §§ 3.1000, 4.31, 4.104, Diagnostic Code 7122 (1997); 38 C.F.R. § 3.158 (1951). 3. The criteria for disability ratings of 10 percent for the Veteran's residuals of frostbite of the hands and feet were met from January 12, 1998 to October 31, 2002. 38 U.S.C.A. §§ 1155, 5121 (West 2002); 38 C.F.R. §§ 3.1000, 4.104, Diagnostic Code 7122 (2002). 4. The criteria for disability ratings of 10 percent for the Veteran's residuals of frostbite of the feet were met from January 12, 1998 to March 21, 2000; the criteria for 30 percent ratings were met from March 22, 2000 to October 31, 2002. 38 U.S.C.A. §§ 1155, 5121 (West 2002); 38 C.F.R. §§ 3.1000, 4.104, Diagnostic Code 7122 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Court Order In December 2008, the Court reversed the Board's dismissal of the claim of CUE in the December 1951 VA rating decision in failing to grant service connection for frozen feet and hands. The Court remanded the case for the Board to assign an appropriate date for the award of service connection for frostbite of the hands and feet, the appropriate disability rating(s) for frostbite of the hands and feet, and effective date(s) for those disability rating(s). The Veterans Claims Assistance Act of 2000 The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See Holliday v. Principi, 14 Vet. App. 280 (2000) [the Board must make a determination as to the applicability of the various provisions of the VCAA to a particular claim]. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. No VCAA notice is necessary in this case because, as is more thoroughly discussed in the law and regulations section immediately below, the outcome of this claim as to effective dates and disability ratings for accrued benefits purposes depends exclusively on documents which are already contained in the Veteran's VA claims folder. Neither the Court of the appellant's attorney has suggested that VCAA notice is required at this juncture. With respect to general due process considerations, the appellant has been accorded ample opportunity to present evidence and argument in support of her claim. See 38 C.F.R. § 3.103 (2008). She has retained the services of an attorney who has presented argument on her behalf. She has not requested a Board hearing. Accordingly, the Board will proceed to a decision on the merits as to this issue. Pertinent law and regulations Accrued benefits The law and regulation governing claims for accrued benefits state that, upon the death of a veteran, his or her lawful surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of his or her death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when the veteran died. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2008); see also Jones v. Brown, 8 Vet. App. 558, 560 (1996). Although the appellant's claim for accrued benefits that is at issue in this appeal is separate from the claim of the Veteran filed prior to his death, the accrued benefits claim is "derivative of" the claim of the Veteran and, by statute, the appellant takes the Veteran's claim as it stood on the date of his death. See Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed. Cir. 1996). Entitlement to accrued benefits must be determined based on evidence that was physically present or constructively present (such as VA treatment records) in the Veteran's claims folder when he died. See 38 U.S.C.A. § 5121(a); Ralston v. West, 13 Vet. App. 108, 113 (1999). Effective dates The effective date for a claim based on error pursuant to 38 C.F.R. § 3.105 is the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.400(k) (2008). Unless specifically provided otherwise, the effective date of an award of compensation based on an original claim shall be fixed in accordance with facts found but shall not be earlier than the date of receipt of application therefor. See 38 U.S.C.A. § 5110(a). The implementing VA regulation provides that the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(a) (2008). The effective date for an award of service connection for a disability shall be the day following separation from active service or date entitlement arose if the claim was received within one year after separation from service; otherwise, the effective date shall be date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Increased disability ratings - in general Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2008). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2008). Specific rating criteria In assigning disability ratings and effective dates for the residuals of frostbite of the hands and feet, the Board must consider the rating criteria from May 1951 to October 2002. In that regard, VA issued revised regulations amending the portion of the rating schedule dealing with residuals of frostbite. Effective January 12, 1998, VA revised the criteria for evaluating residuals of frostbite, Diagnostic Code 7122. See 62 Fed. Reg. 65,207 (1997). Specific rating criteria will be discussed where appropriate below. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008) [reasonable doubt to be resolved in veteran's favor]. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis As noted above, in December 2006, the Board dismissed the claim of CUE in the December 1951 VA rating decision in failing to grant service connection for frozen feet and hands. In December 2008, the Court reversed the Board's dismissal of the claim of CUE in the December 1951 VA rating decision in failing to grant service connection for frozen feet and hands. The Court remanded the claim for the Board to assign an appropriate date for the award of service connection for frostbite of the hands and feet, appropriate disability rating(s) for the frostbite of the hands and feet, and effective date(s) for those disability rating(s). The Board will proceed to do so. Effective date for the grant of service connection Previously, the RO granted an effective date of November 1, 2002 for the various residuals of frostbite of the hands and feet. The Board must assign an effective date based on the Court's finding that "It is clear from the record that if the 1951 RO had not incorrectly applied to the evidence of record the law in effect at the time of its decision, it would have granted the veteran's claim for service connection for frostbite." See the Court's December 9, 2008 Memorandum Decision, pages 5-6. On May 17, 1951, the Veteran separated from active service. On May 24, 1951, the Veteran filed a claim for service connection for residuals of frostbite of the hands and feet, an injury from that period of service, which was within a year of his date of separation from that period of service. Therefore, the date of the grant of service connection for residuals of frostbite of the hands and feet is May 18, 1951, the day following the Veteran's separation from his second period of active service. Disability ratings and effective dates After having determined the date of service connection to be May 17, 1951, the Board next must assign disability ratings from that date to October 31, 2002, the date previously assigned for service connection. [The disability ratings assigned for frostbite residuals starting on November 1, 2002, the previously assigned date of service connection, have not been appealed, they were not subjects of the Court's decision, and they will not be addressed by the Board.] As has been discussed above, the schedular criteria were amended effective January 12, 1998. (i.) The former schedular criteria From 1951 to January 11, 1998, residuals of frozen feet (immersion foot) with mild symptoms, chilblains, warranted a 10 percent evaluation, whether the condition was unilateral or bilateral. Unilateral persistent moderate swelling, tenderness, redness, etc., warranted a 20 percent evaluation while a 30 percent rating was warranted when there was persistent moderate swelling, tenderness, redness, etc., bilaterally. Unilateral loss of toes, or parts, and persistent severe symptoms warranted a 30 percent rating, while bilateral loss of toes, or parts, and persistent severe symptoms warranted a 50 percent evaluation. A note following this diagnostic code indicated that there was no requirement of loss of toes or parts for an assessment of mild or moderate disability. See 38 C.F.R. § 4.104, Diagnostic Code 7122 (1997). 38 C.F.R. § 3.158 (1951) provided for the assignment of a "no-percent" rating when a "disability under any diagnostic classification ... does not meet the minimum Rating Schedule standard under that classification." [The Board notes that 38 C.F.R. § 3.158 was later renumbered as 38 C.F.R. § 4.31]. In order to warrant a compensable rating the Veteran's residuals of frostbite of the hands and feet under the former schedular criteria, there had to have been at least mild severity and chilblains. These criteria are conjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (June 1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met]; compare Johnson v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]. The appellant's counsel in the May 2009 brief concedes that a 20 percent disability rating under the former schedular criteria is not warranted. Instead, the counsel argues that the evidence "most nearly approximated a 10 percent evaluation" based on the following: the Veteran's reporting of symptomatology at the October 1951 VA examination, the October 1951 VA examiner's diagnosis of "mild" residuals of frostbite, and the November 1951 private treatment record showing "[s]plotches on chest, caused by poor circulation due to frost-bite." See May 2009 brief of the appellant, pages 4-5. Physical examination in October 1951 revealed that the Veteran's hands were entirely normal with good arterial and venous circulation, that there was no excessive perspiration, and that there were no changes in the skin. The feet showed normal color, moisture, and temperature. There was no excessive blanching on elevation, no cyanosis on dependency, no callous formation, and no other trophic changes. Dorsalis pedis and posterior tibial pulsations were normal in the feet. The examination was otherwise negative. No chilblains, or other imperfections, were noted on physical examination on the upper or lower extremities. The examiner noted that there were no clinical signs present. Notwithstanding this assessment, which appeared to indicate that no symptomatology attributable to frostbite was present, the October 1951examiner described the Veteran's disability as "mild". However, even accepting that "mild" disability existed, chilblains were not present on the Veteran's upper or lower extremities during that examination. Although the November 1951 private treatment record reflects that the Veteran had "[s]plotches on chest, caused by poor circulation due to frost-bite", the physician did not note that the Veteran had splotches or chilblains on any upper or lower extremity. The record shows that the Veteran's service-connected residuals of frostbite, then and now, were limited the upper and lower extremities. It is clear from the plain language of the 1951 rating criteria that symptoms on the extremities were to be considered. There is no indication that chilblains on any non service-connected part of the body were to be considered. Based on the regulation, the Board concludes that any manifestations of frostbite on other parts of the body may not be considered. In any event, as was noted by the appellant's counsel in a September 2007 brief to the Court, a chilblain is a recurrent localized erythema and doughy subcutaneous swelling caused by exposure to cold associated with dampness, and accompanied by pruritus and a burning sensation, usually involving the hands and fingers in men. See September 2007 brief of appellant, pages 8-9, citing Dorland's Illustrated Medical Dictionary 347 (30th ed. 2003). The private physician in November 1951 did not indicate that the splotches on the Veteran's chest were manifested by doughy subcutaneous swelling, pruritus, or a burning sensation, nor did he refer to chilblains as such. The Board further notes that no residuals of frostbite, such as chilblains, were noted on the December 1951 VA examination. There is no evidence of record from 1951 to October 2002 showing that the Veteran had chilblains on the upper or lower extremities. Therefore, the objective clinical findings show that from May 18, 1951 onward, the Veteran's service-connected residuals of frostbite of the hands and feet were not manifested by chilblains on the upper or lower extremities. Indeed, with the one exception noted above, which involved the Veteran's chest and not his hands and feet, there was no objective medical evidence of any frostbite residuals. In short, the evidence of record does not show that chilblains were present. In the absence of such, a compensable rating cannot be assigned As the Court noted in its memorandum decision, "[e]ven if the [V]eteran's symptoms did not warrant a compensable rating based upon the October 1951 VA examiner's diagnosis of '[r]esiduals, frostbite feet, mild,' ... the [V]eteran was entitled, at minimum, to a noncompensable rating under the regulation then in effect that provided for assignment of a no-percent rating when "a disability under any diagnostic classification ... does not meet the minimum Rating Schedule standard under that classification.' 38 C.F.R. § 3.158 (1949 & Supp. 1950, 1951)." See the December 9, 2008 memorandum decision, page 5. The appellant's attorney has suggested that the Veteran's symptomatology approximated 10 percent. See 38 C.F.R. § 4.7 [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 required for that rating. Otherwise, the lower rating will be assigned. As has been discussed above, the objective medical evidence from 1951 onward is devoid of any suggestion that there were frostbite symptoms present. Indeed, the Veteran did not seek medical attention for decades thereafter. Accordingly, a compensable evaluation for the Veteran's residuals of frostbite of the hands and feet under the old rating criteria is not warranted. (ii.) The current schedular criteria Under the revised criteria of Diagnostic Code 7122, effective January 12, 1998, a 10 percent rating is assigned for residuals of cold injury with pain, numbness, cold sensitivity or arthralgia. A 20 percent rating requires pain, numbness, cold sensitivity or arthralgia plus tissue loss, nail abnormalities, color changes, local impaired sensation, hyperhidrosis or X-ray abnormalities (osteoporosis, subarticular punched out lesions or osteoarthritis). A 30 percent rating requires pain, numbness, cold sensitivity or arthralgia plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions or osteoarthritis). The current schedular criteria became effective January 12, 1998. In order to warrant a 10 percent rating under the current schedular criteria, the Veteran's residuals of frostbite of the hands and feet had to have been at least manifested by pain, numbness, cold sensitivity or arthralgia. As noted above, at the October 1951 VA examination, the Veteran complained of throbbing pain in the lower extremities and intermittent hand pain. He also complained that his feet were always cold. There is no indication that the Veteran did not have this same symptomatology later in his life. In fact, the Veteran had similar complaints at a December 2002 VA examination. The objective clinical findings show that from January 12, 1998, the date the current schedular criteria became effective, to October 31, 2002, the Veteran's service-connected residuals of frostbite of the hands and feet were manifested by complaints of pain in both hands and both feet and cold sensitivity in both feet. Therefore, at least a 10 percent disability rating is warranted in each extremity starting with the effective date of the amended criteria, January 12, 1998. In order to warrant a rating in excess of 10 percent for an extremity, the question is whether the Veteran had nail and X-rays abnormalities or other findings that would warrant a 20 or 30 percent rating prior to November 1, 2002. There is in fact no objective medical evidence of tissue loss, nail abnormalities, color changes, local impaired sensation, hyperhidrosis or X-ray abnormalities (osteoporosis, subarticular punched out lesions or osteoarthritis) prior to March 22, 2000. Nail abnormalities of the feet were first noted on a March 22, 2000 private treatment record. Physical examination of the feet revealed mild nail thickening and possibly some appendicular loss bilaterally. This treatment record shows not only nail abnormalities but also possibly tissue loss. The report of the December 2002 VA examination shows skin atrophy in the feet. The evidence appears to indicate that two of the criteria necessary for a 30 percent disability rating - tissue loss and nail abnormalities - existed as of March 22, 2000. Therefore, 30 percent disability ratings for residuals of frostbite of the feet are warranted effective March 22, 2000. Turning to the residuals of frostbite of the hands, prior to October 31, 2002 there is no objective medical evidence of tissue loss, nail abnormalities, color changes, local impaired sensation, hyperhidrosis or X-ray abnormalities (osteoporosis, subarticular punched out lesions or osteoarthritis). The Board notes that private medical records from this time period do not reveal any such findings; X-ray abnormalities and nail abnormalities involving the hands were first noted on the December 2002 VA examination, not the March 22, 2000 examination. In summary, ten percent ratings may be assigned for each extremity as of the date of the amended rating criteria, January 12, 1998, to March 21, 2000. As of March 22, 2000, 30 percent ratings may be assigned for frostbite of the feet. Extraschedular consideration The appellant has not raised the matter of extraschedular consideration for the Veteran's service-connected residuals of frostbite of the hands and feet. See 38 C.F.R. § 3.321(b) (2008). Moreover, the appellant and her counsel have not identified any factors which may be considered to be exceptional or unusual. Accordingly, the matter of entitlement to an extraschedular rating for the residuals of frostbite of the hands and feet will not be considered by the Board. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) [the Board cannot make a determination as to an extraschedular evaluation in the first instance]. Conclusion In summary, for reasons and bases expressed above, it is the Board's decision that an earlier effective date of May 18, 1951, the date following the Veteran's separation from his second period of active service, is assigned for the grant of service connection for residuals of frostbite of the hands and feet; that a zero percent disability rating for residuals of frostbite of the hands and feet is assigned from May 18, 1951 to January 11, 1998; that 10 percent disability ratings are assigned for residuals of frostbite of the hands from January 12, 1998 to October 31, 2002; and that 10 percent disability ratings for residuals of frostbite of the feet are assigned from January 11, 1998 to March 21, 2000; and that 30 percent ratings are assigned for residuals of frostbite of the feet from March 22, 2000 to October 31, 2002, all for the purposes of accrued benefits. The appeal is allowed to that extent. ORDER An effective date of May 18, 1951 is assigned for the grant of service connection for residuals of frostbite of the hands and feet, for the purpose of accrued benefits. A zero percent disability rating for residuals of frostbite of the hands and feet is granted from May 18, 1951 to January 11, 1998, for the purpose of accrued benefits, subject to controlling regulations applicable to the payment of monetary benefits. Ten percent disability ratings are assigned for residuals of frostbite of the hands from January 12, 1998 to October 31, 2002, for the purpose of accrued benefits, subject to controlling regulations applicable to the payment of monetary benefits. Ten percent disability ratings are assigned for residuals of frostbite of the feet from January 12, 1998 to March 21, 2000, and 30 percent disability ratings are assigned from March 22, 2000 to October 31, 2002, for the purpose of accrued benefits, subject to controlling regulations applicable to the payment of monetary benefits. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs