Citation Nr: 0809637	
Decision Date: 03/21/08    Archive Date: 04/03/08

DOCKET NO.  05-13 474	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New 
Orleans, Louisiana


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for 
residuals of cold injury of the left foot. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. Jeng, Associate Counsel


INTRODUCTION

The veteran had active duty from June 1950 June 1953.

This matter comes before the Board of Veterans' Appeals 
(Board) from a February 2004 rating decision of a Department 
of Veterans Affairs (VA) Regional Office (RO).  In October 
2006, the Board remanded the matter for further development.  

A motion to advance this appeal on the Board's docket has 
been granted under the authority of 38 U.S.C.A. § 7107(a) 
(West 2002) and 38 C.F.R. § 20.900(c) (2007).


FINDING OF FACT

The residuals of cold injury of the left foot include 
tingling and numbness; they do not include tissue loss, nail 
abnormalities, color changes, locally impaired sensation, 
hyperhidrosis, or x-ray abnormalities.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent 
for residuals of cold injury of the left foot have not been 
met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. 
§§ 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code (DC) 7122 
(2007).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

In correspondence dated in September 2003, the RO satisfied 
its duty to notify the veteran under 38 U.S.C.A. § 5103(a) 
(West 2002) and 38 C.F.R. § 3.159(b) (2007).  Specifically, 
the RO notified the veteran of: information and evidence 
necessary to substantiate the claim; information and evidence 
that VA would seek to provide; and information and evidence 
that the veteran was expected to provide.  The veteran was 
instructed to submit any evidence in his possession that 
pertained to his claims.  In October 2006, the RO also 
notified the veteran of the process by which initial 
disability ratings and effective dates are established. 
 Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The veteran 
responded in correspondence dated in November 2007 that he 
had nothing further to submit. 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the evidence presented with the claim and to 
provide the claimant with notice of what information and 
evidence not previously provided, if any, will assist in 
substantiating, or is necessary to substantiate, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.

Here, the veteran is challenging the initial evaluation and 
effective date assigned following the grant of service 
connection.  In Dingess, the Court of Appeals for Veterans 
Claims held that in cases where service connection has been 
granted and an initial disability rating and effective date 
have been assigned, the typical service-connection claim has 
been more than substantiated, it has been proven, thereby 
rendering section 5103(a) notice no longer required because 
the purpose that the notice is intended to serve has been 
fulfilled. Id. at 490-91.  Thus, because the notice that was 
provided before service connection was granted was legally 
sufficient, VA's duty to notify in this case has been 
satisfied.

According to Vazquez-Flores v. Peake, -- Vet. App. --, No. 
05-0355, 2008 WL 239951 (Jan. 30, 2008), for an increased-
compensation claim, 38 U.S.C.A. § 5103(a) requires, at a 
minimum, that the Secretary notify the claimant that, to 
substantiate a claim, the claimant must provide, or ask the 
Secretary to obtain, medical or lay evidence demonstrating a 
worsening or increase in severity of the disability and the 
effect that worsening has on the claimant's employment and 
daily life.  Further, if the Diagnostic Code under which the 
claimant is rated contains criteria necessary for entitlement 
to a higher disability rating that would not be satisfied by 
the claimant demonstrating a noticeable worsening or increase 
in severity of the disability and the effect of that 
worsening has on the claimant's employment and daily life 
(such as a specific measurement or test result), the 
Secretary must provide at least general notice of that 
requirement to the claimant.  Additionally, the claimant must 
be notified that, should an increase in disability be found, 
a disability rating will be determined by applying relevant 
Diagnostic Codes, which typically provide for a range in 
severity of a particular disability from noncompensable to as 
much as 100 percent (depending on the disability involved), 
based on the nature of the symptoms of the condition for 
which disability compensation is being sought, their severity 
and duration, and their impact upon employment and daily 
life.  As with proper notice for an initial disability rating 
and consistent with the statutory and regulatory history, the 
notice must also provide examples of the types of medical and 
lay evidence that the claimant may submit (or ask the 
Secretary to obtain) that are relevant to establishing 
entitlement to increased compensation-e.g., competent lay 
statements describing symptoms, medical and hospitalization 
records, medical statements, employer statements, job 
application rejections, and any other evidence showing an 
increase in the disability or exceptional circumstances 
relating to the disability. 

In this case, the claimant was provided pertinent information 
in VCAA notice cited above and in the March 2005 statement of 
the case, and the May 2005 supplemental statement of the 
case.  Cumulatively, the veteran was informed of the 
necessity of providing on his/her own or by VA, medical or 
lay evidence demonstrating a worsening or increase in 
severity of the disability and the effect that worsening has 
on the claimant's employment and daily life.  

The veteran's pertinent medical records have been obtained, 
to the extent available.  38 U.S.C.A. § 5103A (West 2002); 38 
C.F.R. § 3.159 (2007).  There is no indication in the record 
that any additional evidence, relevant to the issue decided 
herein, is available and not part of the claims file.   There 
is no objective evidence indicating that there has been a 
material change in the service-connected disorder(s) since 
the veteran was last examined.  38 C.F.R. § 3.327(a).  The 
duty to assist does not require that a claim be remanded 
solely because of the passage of time since an otherwise 
adequate VA examination was conducted.  See VAOPGCPREC 11-95.  
The January 2004 VA examination report is thorough and 
supported by the other clinical records.  The examination in 
this case is adequate upon which to base a decision.  The 
records satisfy 38 C.F.R. § 3.326 (2007).
Analysis

The veteran essentially contends that his residuals of cold 
injury of the left foot is more disabling than contemplated 
by the current 10 percent rating. 

Disability evaluations are determined by the application of a 
schedule of ratings, which is based on the average impairment 
of earning capacity.  Separate diagnostic codes identify the 
various disabilities.  Each disability must be viewed in 
relation to its history, with an emphasis on the limitation 
of activity imposed by the disabling condition.  Medical 
reports must be interpreted in light of the whole recorded 
history, and each disability must be considered from the 
point of view of the veteran working or seeking work.  Where 
there is a question as to which of two disability evaluations 
shall be applied, the higher evaluation is to be assigned if 
the disability picture more nearly approximates the criteria 
required for that rating.  Otherwise, the lower rating is to 
be assigned.  See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 
4.7.  

Since the initial grant of service connection, the veteran's 
disability has been assigned a 10 percent rating.  In an 
appeal of an initial rating, consideration must be given to 
"staged" ratings, i.e., disability ratings for separate 
periods of time based 
on the facts found.  See Fenderson v. West, 12 Vet. App. 119 
(1999).  The Board will thus consider entitlement to "staged 
ratings" in this case.

The veteran's disability has been rated under DC 7122 which 
assigns a higher rating of 20 percent rating when there is 
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).  38 C.F.R. § 4.104, DC 7122.  

Two notes follow DC 7122.  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.  The rater is also instructed to 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 DC 7122.  Note (2) 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.  Id.

The evidence includes a September 2003 letter from C. White, 
M.D. noting that the veteran had paresthesias involving his 
toes.  

VA afforded the veteran a cold injury examination in January 
2004.  The veteran's current symptoms were numbness of his 
fingers.  The report noted:  full range of motion, no 
amputation or tissue loss, positive cold sensitization, no 
Raynaud's phenomenon, no hyperhidrosis, no tingling positive, 
no chronic pain, no fungal infection, no breakdown or 
ulceration, normal nail growth, no skin cancer, no arthritis 
or stiffness, no edema, no change of skin color, normal 
thickening/scaling, no seep disturbance, no cold feeling, 
only mild tingling, and no excessive sweating.  The examiner 
observed no change in the veteran's color, no edema, 
temperature was warm, no atrophy, no fungal infection, and 
normal nails.  Additionally, neurological examination found 
II to XII to be grossly intact with only tingling of the toes 
and fingers.  Orthopedic and vascular examination was normal.  
Diagnosis was mild cold injury affecting toes; cold injury of 
the left foot with mild tingling and mild symptoms.  

A March 2005 record from Opelousas General Health System 
noted there was no evidence of hemodynamically significant 
lesions in the lower extremity arterial system.  There was 
evidence of diffuse calcification and non-compressible 
vessels. 

Based on the evidence, the Board finds that a rating in 
excess of 10 percent for the veteran's residuals of cold 
injury of the left foot is not warranted.  While the veteran 
has mild tingling and mild symptoms, he has not demonstrated 
arthralgia or other pain, numbness, or cold sensitivity plus 
tissue loss, nail abnormalities, color changes, locally 
impaired sensation, hyperhidrosis, or x-ray abnormalities.  
Therefore, the current 10 percent rating is appropriate.  

The Board notes the veteran's assertion of discoloration on 
the bottom of his feet and that his feet were never examined.  
The Board finds that the January 2004 examination report does 
not objectively demonstrate the symptoms he asserts, and the 
examination was specifically rendered to review his residuals 
of cold injury which included his foot. 

The Board further finds that, since the effective date of 
service connection, there were no distinct periods of time 
during which the veteran's disability was more than 10 
percent disabling.  He is accordingly not entitled to receive 
a "staged" rating.  Fenderson, supra.

Finally, the veteran has not been hospitalized for his 
disability and no evidence suggests this disability markedly 
interfered with his employment.  In fact, the January 2004 VA 
examination report noted that the veteran worked as a school 
teacher for 32 years and the residuals of cold injury did not 
affect his job.  In any case, the existing schedular rating 
is already based upon the average impairment of earning 
capacity, and is intended to be considered from the point of 
view of the veteran working or seeking work.  A referral for 
consideration of an extraschedular rating is not warranted.  
38 C.F.R. § 3.321 (b)(1).

As the preponderance of the evidence is against the claim, 
the benefit-of-the-doubt rule does not apply, and the claim 
must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 
1 Vet. App. 49 (1990).


ORDER

An initial rating in excess of 10 percent for residuals of 
cold injury of the left foot is denied. 



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs