Citation Nr: 0616890 Decision Date: 06/08/06 Archive Date: 06/26/06 DOCKET NO. 04-07 940 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased (compensable) rating for residuals of cold injury of the left or right foot prior to June 27, 2000. 2. Entitlement to an increased rating for residuals of cold injury of the left foot, rated as 10 percent disabling from June 27, 2000 to April 16, 2002. 3. Entitlement to an increased rating for residuals of cold injury of the right foot, rated as 10 percent disabling from June 27, 2000 to April 16, 2002. 4. Entitlement to an increased rating for residuals of cold injury of the left foot, rated as 30 percent disabling from April 16, 2002. 5. Entitlement to an increased rating for residuals of cold injury of the right foot, rated as 30 percent disabling from April 16, 2002. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from December 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. March 2006 mail which was sent by the veteran to the RO was forwarded from the RO to the Board. It is not relevant to the appeal before the Board. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. There is no evidence that prior to June 27, 2000, frozen feet residuals were symptomatic. 2. Between June 27, 2000 and April 16, 2002, neither foot had bilateral persistent moderate swelling, tenderness, redness, etc.; or loss of toes or parts. 3. Between June 27, 2000 and April 16, 2002, neither foot had arthralgia or other pain, numbness, or cold sensitivity, plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities. 4. From April 16, 2002, the maximum schedular rating of 30 percent for residuals of cold injury of each foot is assigned under new Diagnostic Code (DC) 7122, and combined, it is more valuable than a 50 percent rating under old DC 7122. 5. The service-connected disabilities do not present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for residuals of frozen feet or residuals of cold injury of the left or right foot prior to June 27, 2000 are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 7122 (1997, 2005). 2. The criteria for a rating in excess of 10 percent for residuals of cold injury of the left foot from June 27, 2000 to April 16, 2002 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 7122 (1997, 2005). 3. The criteria for a rating in excess of 10 percent for residuals of cold injury of the right foot from June 27, 2000 to April 16, 2002 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 7122 (1997, 2005). 4. The criteria for a disability rating in excess of 30 percent for residuals of cold injury of the left foot from April 16, 2002 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 7122 (1997, 2005). 5. The criteria for a disability rating in excess of 30 percent for residuals of cold injury of the right foot from April 16, 2002 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 7122 (1997, 2005). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This claim for an increased rating was filed in May 1984. The cumulative effect of rating decisions in October 2002 and February 2004 is that the veteran has a noncompensable rating for residuals of frozen feet prior to June 27, 2000; two separate 10 percent ratings for residuals of cold injury, from June 27, 2000 to April 16, 2002; and two separate 30 percent ratings for residuals of cold injury, from April 16, 2002. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes in 38 C.F.R. Part 4 identify the various disabilities. During the pendency of this appeal, the applicable rating criteria for cold injury residuals, found at 38 C.F.R. Part 4, Diagnostic Code 7122, were amended, with substantive changes effective January 12, 1998. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. The Board will therefore evaluate the veteran's service-connected cold injury residuals under both the former and the current schedular criteria, keeping in mind that the revised criteria may not be applied to any time period before the effective date of the change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Pursuant to the former criteria of 38 C.F.R. § 4.104, Diagnostic Code 7122 (as in effect when the veteran filed his claim and prior to January 12, 1998), a 10 percent rating is warranted for mild symptoms of a cold injury or chilblains regardless of whether the condition was unilateral or bilateral. With persistent moderate swelling, tenderness, redness, etc., unilateral symptoms warrant a 20 percent evaluation and bilateral symptoms warrant a 30 percent evaluation. With loss of toes, or parts, and persistent severe symptoms, unilateral cold injury residuals warrant a 30 percent evaluation and bilateral symptoms warrant a 50 percent evaluation. A note following this diagnostic code indicates that there is 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 (as in effect prior to January 12, 1998). Under the revised rating criteria, a 10 percent evaluation is warranted for cold injury residuals of arthralgia or other pain, numbness, or cold sensitivity. For a 20 percent evaluation, there must be arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subauricular punched out lesions, or osteoarthritis). A 30 percent evaluation requires arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, X-ray abnormalities (osteoporosis, subauricular punched out lesions, or osteoarthritis). Note (1) instructs the rater to separately evaluate amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, under other diagnostic codes. Separately evaluate other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under diagnostic code 7122. Note (2) to Diagnostic Code 7122 states that each affected part is to be evaluated separately and the ratings combined in accordance with 38 C.F.R. § 4.25 and § 4.26 The evidence demonstrates that prior to June 27, 2000, the criteria for a compensable rating under old DC 7122's criteria are not met. In order for a compensable rating to be warranted under old Diagnostic Code 7122, mild symptoms and chilblains, would have to be shown. One evaluator in December 1993 had found good distal pulses, good color, no lesions, cyanosis, or edema, and no neurological complaints. Another evaluator in August 1999 had found the veteran's neurologic and skin to be grossly intact. In light of this, the Board concludes that a compensable rating under old DC 7122 prior to June 27, 2000 is not warranted. New DC 7122 is also for consideration from its January 12, 1998 effective date to June 27, 2000, but the evidence shows that, prior to June 27, 2000, the criteria for a compensable rating for either foot are not met. Arthralgia or other pain, numbness, or cold sensitivity of either foot would have to be shown, and the August 1999 private treatment report indicates that on examination, the veteran's extremities, neurologic, and skin were negative in pertinent part. The report states that the extremities were negative except for absent dorsalis pedis pulses times 2, that the neurologic was grossly intact, and that the skin was negative. The next question to be addressed is whether the veteran can be rated more favorably between June 27, 2000 and April 16, 2000 than he is now by the two 10 percent ratings he has been assigned. These ratings combine to 20 percent, per 38 C.F.R. §§ 4.25, 4.26 (2005). He can not be rated more favorably under the old DC 7122 because persistent moderate swelling, tenderness, and redness of either foot or loss of toes or parts of toes required for a higher rating under that code is not shown. The June 27, 2000 VA medical record shows that his musculoskeletal system was reviewed for history and that swelling was denied. Physical examination revealed his skin to have a fair complexion and that sensation was within normal limits. His extremities were examined for lesions and edema and none were reported. Also, a rating higher than 10 percent for either foot under new DC 7122 is not warranted. The evidence does not show that the veteran had arthralgia or other pain, numbness, or cold sensitivity, plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities during that time, and such is required for either foot for a higher rating than 10 percent for either foot. The June 27, 2000, medical record does not indicate that there was any tissue loss. It states that there were no lesions, nails were negative and a review of the integument (skin) was negative for eruptions. It contains no evidence that the veteran had color changes, hyperhidrosis, or X-ray abnormalities at that time, and it indicates that his skin and lower extremities were examined for lesions and his lower extremities were examined for range of motion. Coordination and muscle strength were within normal limits. Additionally, the neurological examination, including for sensation, was otherwise within normal limits. Therefore, the Board concludes that between June 27, 2000 and April 16, 2002, increased ratings are not warranted. The remaining question, then, is whether, from April 16, 2002, either set of criteria can benefit him more than the current two 30 percent ratings he has been assigned under new DC 7122, which combine to a value of 60 percent per 38 C.F.R. §§ 4.25, 4.26. Given the combined rating, the new rating criteria is better than the old criteria, whose highest value is 50 percent. Additionally, the 30 percent ratings assigned under new DC 7122 are the maximum schedular rating. The veteran's basis for his appeal as stated by him in October 2003 is that he has become completely disabled due to disability of both feet and legs. However, only service-connected cold injury of the feet is at issue, and the compensation ratings must be in light of applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). DC 7122, specifically for the disability at issue, is the most appropriate. His argument, however, raises the matter of referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(2). However, the Board's determination is that referral for an extraschedular rating is not appropriate. Marked interference with employment or frequent periods of hospitalization due to the disability at issue is not shown. The veteran himself pointed out in October 2003 that he has a heart condition that causes body fluid to collect, and that it affects his kidneys. He also reported that he has heart rehabilitation exercise 3 times a week and that he has some blindness in both eyes from glaucoma. Additionally, as 2005 treatment records point out, he has had myocardial infarctions, 9 stents, and 4 bypasses altogether. Realistically, there is nothing in the record to suggest that his service-connected residuals of cold injuries of his feet markedly interfere with employment. He is a World War II veteran who last worked as a car salesman in October 1994, according to his May 2002 statement, and his frozen feet residuals were not disabling at that time. The compensable ratings assigned are recognition that there is impairment at the levels indicated, and there is nothing showing that the veteran's disability picture is exceptional. VA's duties to notify and assist VA is required to notify the claimant and his representative, if any, of (1) the information and evidence that is necessary to substantiate the claim; (2) what evidence the claimant is responsible for providing; (3) what evidence VA will attempt to obtain; and (4) the need to submit any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2005); See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). VA has satisfied its duty to notify. In July 2002 and July 2005 letters, the RO provided the requisite notification. Moreover, the claimant was given the text of 38 C.F.R. § 3.159 (2005), concerning the respective duties, in the December 2005 supplemental statement of the case (SSOC). The July 2002 notice preceded the initial adjudication and the July 2005 notice preceded the December 2005 supplemental statement of the case. Thus, the appellant has been afforded the right to content-complying notice and proper subsequent VA process. In a January 2006 response to the SSOC, the veteran specifically indicated that he had not other information or evidence to submit. The claimant has been provided with every opportunity to submit evidence and argument in support of the claim and to respond to VA notices. There is no alleged or actual prejudice regarding the timing of the notification. Any deficiencies in VA's duties to notify or to assist the claimant concerning effective date for an increased rating are harmless, as an increased rating has been denied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In this case, VA obtained VA and private medical records and examined the veteran, and he and his representative have submitted statements. For the reasons set forth above, and given the facts of this case, no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the claimant. ORDER Entitlement to a compensable rating for residuals of cold injury of either foot prior to June 27, 2000 is denied. Entitlement to a rating in excess of 10 percent for residuals of cold injury of the left foot from June 27, 2000 to April 16, 2002 is denied. Entitlement to a rating in excess of 10 percent for residuals of cold injury of the right foot from June 27, 2000 to April 16, 2002 is denied. Entitlement to a rating in excess of 30 percent for residuals of cold injury of the left foot from April 16, 2002 is denied. Entitlement to a rating in excess of 30 percent for residuals of cold injury of the right foot from April 16, 2002 is denied. ____________________________________________ M. E. LARKIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs