Citation Nr: 0810221 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 04-20 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for residuals, shrapnel wounds, right foot and leg, with retained foreign body. 2. Entitlement to an evaluation in excess of 10 percent for residuals of cold injury, right foot. 3. Entitlement to an evaluation in excess of 10 percent for residuals of cold injury, left foot. 4. Entitlement to an evaluation in excess of 10 percent for residuals of cold injury, right hand. 5. Entitlement to an evaluation in excess of 10 percent for residuals of cold injury, left hand. 6. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The veteran had active service from November 1949 to December 1952. These claims come before the Board of Veterans' Appeals (Board) on appeal of a February 2004 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In February 2007, for good cause shown, namely, the veteran's advanced age, the Board granted the veteran's motion to advance this case on the Board's docket pursuant to the authority of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). In March 2007, the Board remanded these claims to the RO via the Appeals Management Center (AMC). FINDINGS OF FACT 1. VA provided the veteran adequate notice and assistance with regard to his claims. 2. Residuals of shrapnel wounds of the veteran's right foot and leg include well-healed, tender scars, associated pain and discomfort, no more than slight muscle damage, and pain on motion. 3. The residuals of a cold injury to each of the veteran's feet have included cold sensitivity and locally impaired sensation. 4. The residuals of a cold injury to each of the veteran's hands have included cold sensitivity and locally impaired sensation. 5. The veteran is not unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 20 percent for residuals, shrapnel wounds, right foot and leg, with retained foreign body, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, 4.73, Diagnostic Codes 5284, 5310 (2007). 2. The criteria for entitlement to a 20 percent evaluation for residuals of cold injury, right foot, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2007). 3. The criteria for entitlement to a 20 percent evaluation for residuals of cold injury, left foot, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2007). 4. The criteria for entitlement to a 20 percent evaluation for residuals of cold injury, right hand, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2007). 5. The criteria for entitlement to a 20 percent evaluation for residuals of cold injury, left hand, have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2007). 6. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16, 4.18 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide, in part, that VA will notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, the RO provided the veteran adequate notice and assistance with regard to his claims such that the Board's decision to proceed in adjudicating them does not prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). A. Duty to Notify The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court also indicated that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio, that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. In March 2006, the Court held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court further held that notice under the VCAA must inform the claimant that, if the RO grants his service connection claim, it will then assign such an award a disability rating and an effective date. Id. at 486. In addition, in January 2008, the Court held that, with regard to claims for increased compensation, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, he 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 his employment and daily life. The Court further held that, 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 that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide the claimant at least general notice of that requirement. The Court additionally held that 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 list examples of the types of medical and lay evidence the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Such evidence includes 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The RO provided the veteran VCAA notice on his claims by letters dated in April 2001, May 2001, February 2002, March 2002, December 2003 and March 2007, the first four sent before initially deciding these claims in a rating decision dated in February 2004. The timing of such notice thus reflects compliance with the requirements of the law as found by the Court in Pelegrini II. The content of such notice is not, however, VCAA compliant. More specifically, such notice informed the veteran of the need to submit evidence demonstrating a worsening or an increase in severity of his service-connected disabilities, but not of the need to submit evidence describing the effect of any worsening on his employment and daily life. Such notice also did not inform the veteran of the need to submit more specific evidence satisfying the criteria for increased ratings under the rating codes pursuant to which his disabilities were rated. This type of notice is necessary in this case as the diagnostic codes (DCs) under which the veteran is rated authorize higher evaluations based on specific criteria, rather than on a mere showing of a worsening of the disabilities and its effect upon the claimant's employment and daily life. The RO's error in this regard is not prejudicial as the record establishes that, despite the lack of notice, the veteran had actual knowledge of the need to submit the previously noted evidence. In an Appellant's Post-Remand Brief dated February 2008, the veteran's representative, on the veteran's behalf, first noted the various symptoms shown on VA examination conducted in September 2007, then cited the specific criteria for increased evaluations under Diagnostic Codes 5310 and 7122, pursuant to which the veteran's disabilities are rated, and requested increased evaluations based on the symptoms shown. The representative also cited the criteria for a TDIU based on service-connected disabilities. His written statements make clear that he knew what the evidence needed to establish to warrant the assignment of increased evaluations and the grant of a TDIU. Given the foregoing, the Board finds that any decision to proceed in adjudicating these claims does not prejudice the veteran or compromise the essential fairness of the adjudication. Bernard v. Brown, 4 Vet. App. at 392-94. B. Duty to Assist VA made reasonable efforts to identify and obtain relevant records in support of the veteran's claims. 38 U.S.C.A. § 5103A(a), (b), (c) (West 2002). Specifically, the RO endeavored to secure and associate with the claims file all evidence the veteran identified as being pertinent to those claims, including service medical records and post-service VA treatment records. The RO also conducted medical inquiry in an effort to substantiate the veteran's claims by affording the veteran VA medical examinations, during which examiners addressed the severity of the disabilities at issue in this appeal. Under the facts of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what additional evidence he should submit to substantiate his claim[s]." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). II. Analysis of Claims A. Claims for Increased Evaluations The veteran seeks increased evaluations for residuals of shrapnel wounds to his right foot and leg and residuals of a cold injury to his feet and hands. He claims that the evaluations assigned these disabilities do not accurately reflect the severity of all associated symptomatology. Disability evaluations are determined by evaluating the extent to which a service-connected disability adversely affects a veteran's ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2007). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Otherwise, in claims for increases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examination on which an evaluation is based must adequately portray the anatomical damage, and the functional loss, with respect to all of these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40, 4.45 (2007). As regards the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: less movement than normal; more movement than normal; weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. at 206-7 (holding that VA's review of a service-connected musculoskeletal disability must include an assessment of the functional impairment caused by that disability and that, if the service-connected disability involves a joint rated based on limitation of motion, adequate consideration must be given to functional loss due to pain under 38 C.F.R. § 4.40, and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45). Painful, unstable, or maligned joints due to healed injury are entitled to at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Residuals of Shrapnel Wounds, Right Foot and Leg During service in Korea in April 1951, the veteran suffered multiple small, septic puncture wounds to the right leg (knee and calf) and right foot secondary to a concussion grenade. Initial treatment included cleaning and dressing the wounds and administering antibiotics. Thereafter, the veteran was transferred to a hospital, where physicians examined him and characterized his wounds as penetrating with no artery or nerve involvement, sustained secondary to a missile. The veteran stayed at the hospital for approximately one month, during which time x-rays revealed multiple small metallic fragments in the right leg. By the end of the first week, the wounds healed satisfactorily and the veteran was ambulatory. However, the veteran still complained of slight right leg stiffness. For approximately a month in May 1951, the veteran convalesced at another hospital, during which time, a physician noted that the veteran's wounds were healing well and surface fragments were erupting spontaneously with ease. On discharge examination conducted in November 1952, the veteran reported cramps in his legs and foot trouble and the examiner noted foot difficulty. By rating decision dated June 1967, the RO granted the veteran service connection for residuals of fragment wounds, right foot and leg, with retained metallic foreign body, and assigned that disability an evaluation of 20 percent. The RO based this action on a report of VA examination conducted in June 1956, which shows multiple well-healed scars on the right lower extremity, including two on the right foot and one on the right ankle, one of which was deeply depressed, adherent and tender, and another of which was slightly depressed and adherent, and no other right leg or foot abnormalities, including muscular or neurological in nature. From 1956 to 2000, the veteran did not express complaints associated with, or seek treatment for, residuals of the in- service shrapnel wounds. Beginning in 2001, he complained of tenderness and numbness in his right leg, in the shin area. In June 2001, he underwent a VA examination, during which an examiner noted multiple tender scars on the veteran's right lower extremity, including on the right calf, no associated muscle damage and no vascular or neurological compromise. Based on the findings of the July 2001 VA examination, the RO, by rating decision dated April 2002, assigned the veteran a separate 10 percent evaluation for tender scars on the right leg and continued the 20 percent evaluation assigned all other residuals of the in-service fragment wound, including right leg and right foot muscle damage and right foot scars. The veteran now seeks an evaluation in excess of 20 percent for these residuals. The RO has evaluated these residuals as 20 percent disabling pursuant to DCs 5284 and 5310. DC 5284 provides that a 10 percent evaluation is assignable for a moderate foot injury. A 20 percent evaluation is assignable for a moderately severe foot injury. A 30 percent evaluation is assignable for a severe foot injury. 38 C.F.R. § 4.71a, DC 5284 (2007). With actual loss of the foot, the disability is to be rated at 40 percent. 38 C.F.R. § 4.71a, DC 5284, Note (2007). DC 5310, which governs ratings of injuries to muscle group X, intrinsic muscles of foot, provides that a noncompensable (0 percent) evaluation is assignable for slight disability of the group X muscle. A 10 percent evaluation is assignable for moderate disability of muscle group X. A 20 percent evaluation is assignable for moderately severe disability of the muscle group X. A 30 percent evaluation is assignable for severe disability of muscle group X. 38 C.F.R. § 4.73, DC 5319 (2007). The factors to be considered in evaluating disabilities from healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55, 4.56 (2007). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). Disabilities rated under DCs 5301 to 5323 are to be classified as slight, moderate, moderately severe or severe. 38 C.F.R. § 4.56(d). A slight disability of the muscles consists of a simple muscle wound without debridement or infection. A history with regard to this type of injury should include a superficial wound with brief treatment and no cardinal signs or symptoms of muscle disability. Objective findings should include a minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or retained metallic fragments. 38 C.F.R. § 4.56(d)(1). Moderate disability of the muscles consists of a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. A history with regard to this type of injury should include complaints of one or more of the cardinal signs and symptoms, particularly lowered threshold of fatigue after average use. Objective findings should include some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue. 38 C.F.R. § 4.56(d)(2). A moderately severe disability of the muscles consists of a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of a wound and consistent complaints of symptoms of muscle wounds. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, with loss of deep fascia, muscle substance or normal firm resistance as compared with the sound side. 38 C.F.R. § 4.56(d)(3). A severe disability of the muscles consists of a through and through or deep penetrating wound due to a high velocity missile or large or multiple high velocity missiles, or with a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. The history and complaints with regard to this type of injury should include cardinal signs and symptoms of muscle disability (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement) worse than those shown for moderately severe muscle injuries, and if present, evidence of an inability to keep up with work requirements. Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track, loss of deep fascia or muscle substance on palpation, soft flabby muscles in the wound area, and swollen and hardened muscles in contraction. Tests of strength, endurance, or coordination movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. Another sign of severe muscle disability is x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and an explosive effect of a missile. 38 C.F.R. § 4.56(d)(4). Also applicable to this appeal are the DCs governing ratings of scars. Under DC 7804, a 10 percent evaluation is assignable for scars that are superficial and painful on examination. 38 C.F.R. § 4.118, DC 7804 (2007). Under DC 7800, which governs ratings of scars that disfigure the head, face or neck, a 10 percent evaluation is assignable when one characteristic of disfigurement appears. A 30 percent evaluation is assignable when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. 38 C.F.R. § 4.118, DC 7800 (2007). The eight characteristics of disfigurement include: scar 5 or more inches (13 or more cm.) in length; scar at least one- quarter inch (0.6 cm.) wide at widest part; surface contour or scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq, cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm). 38 C.F.R. § 4.118, DC 7800, Note (1) (2007). Scars, other than of the head, face, or neck, which are deep or cause limited motion, are to be rated under DC 7801. DC 7801 provides that a 10 percent evaluation is assignable for such scars when the area or areas exceed 6 square inches (39 sq. cm.). A 20 percent evaluation is assignable when the area or areas exceed 12 square inches (77 sq. cm.). 38 C.F.R. § 4.118, DC 7801 (2007). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (1), (2) (2007). Scars, other than of the head, face, or neck, which are superficial and do not cause limited motion, are to be rated under DC 7802. DC 7802 provides that a 10 percent evaluation is assignable for area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802 (2007). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25 of this part. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1), (2) (2007). Under DC 7803, a 10 percent evaluation is assignable for scars that are superficial and unstable. 38 C.F.R. § 4.118, DC 7803 (2007). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7803, Note (1), (2) (2007). Other types of scars are to be rated based on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805 (2007). In this case, the veteran's right foot and leg disability picture does not more nearly approximate an evaluation in excess of 20 percent under any pertinent DC. Since the veteran underwent the VA examination in July 2001, he has undergone testing, including magnetic resonance imaging and x-rays, which showed osteomyelitis in the right foot, but no osteoarthritis, and additional examinations, including in December 2003 and September 2007. During the former examination, an examiner noted three well- healed hole-like formations on the right heel, measuring from 1.5 cm. by 1 cm., 1 cm. by .5 cm. and 1.5 cm. by .5 cm, which were not sensitive to touch, but caused pain and discomfort. During the latter examination, the veteran reported tender scars and worsening pain in his right heel. He also reported that, despite the discomfort, he was able to walk a mile and bike for 20 minutes on a stationary bike thrice weekly. An examiner noted pain on range of motion, no change in motion during repetitive testing, no muscular damage of the lower extremities secondary to the in-service shrapnel wounds, no involvement of any muscle group, no deformities, stricture or adherent underlying tendon or fascia, and full strength. The examiner diagnosed chronic osteomyelitis in the veteran's right heel, concluded that that was not part of his service- connected disability on the basis that there were no fragment wounds to the heel, and ruled out any identifiable muscle injury. In addition, with regard to neurologic deficits, the examiner commented that the veteran had intermittent cutaneous, sensory neuropathy that was paroxysmal, not affecting any nerve bundle, which did not cause mild, moderate or severe incomplete or complete paralysis. He did not specify whether this sensory neuropathy resulted from the right foot and leg disability, the cold injury, or the veteran's bilateral varicosities, which the examiner indicated were not related to any service-connected disability, but reading the report as a whole and most favorably to the veteran, it appears to be associated with the cold injury. Finally, the examiner opined that the residuals at issue did not render the veteran unable to secure and follow a substantially gainful occupation. The evidence clearly conflicts regarding whether the heel scars and associated pain and discomfort are part of the veteran's service-connected right foot and leg disability. The Board, however, assumes that such is the case and finds that residuals of shrapnel wounds of the veteran's right foot and leg include well-healed, tender foot scars, associated pain and discomfort, no more than slight muscle damage and pain on motion. This symptomatology is contemplated in the 20 percent evaluation assigned the veteran's right foot and leg disability. There is no evidence of record establishing that the veteran has a severe foot injury, which would warrant the assignment of a 30 percent evaluation under DC 5284, or moderate right foot muscle damage. In fact, since the veteran was discharged from service, three VA examiners have indicated that the veteran's right foot and leg disability involves no muscle damage. There is also no evidence of record establishing that the veteran's scars disfigure his head, face or neck or involve an area exceeding one-half square feet, which would warrant the assignment of a 30 percent evaluation under DC 7800 or 7801. 2. Residuals of Cold Injury The RO has evaluated residuals of an in-service cold injury to each hand and foot as 10 percent disabling pursuant to DC 7122. DC 7122 provides that a 10 percent evaluation is assignable for cold injury residuals with the following in the affected parts: arthralgia or other pain, numbness, or cold sensitivity. A 20 percent evaluation is assignable for cold injury residuals with the following in the affected parts: arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 30 percent evaluation is assignable for cold injury residuals with the following in the affected parts: 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, subarticular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104, DC 7122 (2007). In this case, the cold injury disability pictures more nearly approximate increased evaluations under DC 7122. A medical professional first noted residuals of the in- service cold injury in April 2002, during a VA cold injury examination. Such residuals included cold sensitivity in both hands and feet, recurrent nocturnal foot pain without any neurovascular compromise, and onychomycosis of three toes. Since then, the veteran has undergone additional VA examinations, including in December 2003 and in September 2007. During the former examination, an examiner noted the following residuals of the in-service cold injury: sensitivity to cold in the hands and feet, and hands and feet that were cool to cold to the touch, but normal in color with good pulses. During the latter examination, an examiner noted the following residuals of the in-service cold injury: hands that were cold to the touch, mild dyshidrotic skin on the feet and between the toes and sensory neuropathy that was paroxysmal, not affecting any nerve bundle, which did not cause mild, moderate or severe incomplete or complete paralysis. The examiner also noted subjective complaints of cold sensitivity in the hands and feet, which he did not objectively confirm. Finally, the examiner opined that the residuals at issue did not render the veteran unable to secure and follow a substantially gainful occupation. In sum, the residuals of a cold injury to each of the veteran's hands and feet have included cold sensitivity and locally impaired sensation. Such symptomatology warrants the assignment of 20 percent evaluations for residuals of a cold injury affecting the feet and hands. The aforementioned foot symptoms do not warrant the assignment of evaluations in excess of 20 percent, for any period of time, in the absence of evidence showing tissue loss, nail abnormalities, color changes, hyperhidrosis, or x- ray abnormalities. The aforementioned hand symptoms do not warrant the assignment of an evaluation in excess of 20 percent in the absence of evidence showing tissue loss, nail abnormalities, color changes, hyperhidrosis, or x-ray abnormalities. 3. Conclusion The rating schedule is designed to accommodate changes in condition; therefore, the veteran may be awarded different evaluations in the future should any of his disability pictures change. See 38 C.F.R. § 4.1. At present, however, the previously noted evaluations are the most appropriate given the medical evidence of record. Based on the previous findings, the Board concludes that the criteria for entitlement to an increased evaluation for residuals, shrapnel wounds, right foot and leg, with retained foreign body, have not been met. In reaching this decision, the Board considered the complete history of the disability at issue as well as the current clinical manifestations and the effect this disability has on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). In addition, the Board considered the applicability of the benefit-of-the- doubt doctrine, but as there is not an approximate balance of positive and negative evidence of record, reasonable doubt may not be resolved in the veteran's favor. Rather, as a preponderance of the evidence is against the claim, such claim must be denied. The Board further concludes that the criteria for entitlement to increased evaluations for residuals of a cold injury affecting the hands and feet have been met. Inasmuch as the evidence supports these claims, they must be granted. B. Claim for TDIU The veteran claims that his service-connected disabilities render him unemployable. A total disability evaluation may be assigned where the schedular evaluation is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2007). In this case, the veteran fails to satisfy the percentage requirements noted above. His service-connected disabilities include: residuals of shrapnel wounds, right foot and leg, with retained metallic foreign body, rated as 20 percent disabling; residuals of cold injury, right foot, rated as 20 percent disabling; residuals of cold injury, left foot, rated as 20 percent disabling; residuals of cold injury, right hand, rated as 20 percent disabling; residuals of cold injury, left hand, rated as 20 percent disabling; residuals of shrapnel wounds, tender scars, right leg; rated as 10 percent disabling. No disability is ratable at 40 percent or more. When a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, at the RO level, rating boards are to submit to the Director, Compensation and Pension Service, for extraschedular consideration, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board is to include in its submission a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and factors having a bearing on the issue. 38 C.F.R. § 4.16(b) (2007). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court discussed the meaning of "substantially gainful employment," in part, by noting the following standard announced by the United States Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Id. The veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2007). In this case, the veteran's occupational background and educational attainment are satisfactory for employment purposes. According to a VA Form 21-8940 (Veteran's Application For Increased Compensation Based On Individual Unemployability) received in December 2003, the veteran attended college for four years and last worked in sales and as a window remodeler for nine years. One medical professional, a VA examiner, has addressed whether the veteran is employable secondary to his service- connected disabilities. In September 2007, during a VA examination, that examiner found that, given the veteran's ability to perform activities of daily living and to walk up to a mile thrice weekly, he did not have residuals of in- service injuries that were so severe they rendered him unable to secure and follow a substantially gainful occupation. The veteran has not submitted a medical opinion refuting that of the VA examiner. Rather, the veteran's assertions represent the only evidence of record establishing that his service-connected disabilities render him unemployable. These assertions may not be considered competent as the record does not reflect that the veteran possesses a recognized degree of medical knowledge to render a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that laypersons are not competent to offer medical opinions). In light of the foregoing, the Board concludes that the criteria for entitlement to a TDIU have not been met. In reaching this decision, the Board considered the applicability of the benefit-of-the-doubt doctrine, but as there is not an approximate balance of positive and negative evidence of record, reasonable doubt could not be resolved in the veteran's favor. Rather, as a preponderance of the evidence is against the claim for TDIU, such claim must be denied. ORDER An evaluation in excess of 20 percent for residuals, shrapnel wounds, right foot and leg, with retained foreign body, is denied. A 20 percent evaluation for residuals of cold injury, right foot, is granted subject to statutory and regulatory provisions governing the payment of monetary benefits. A 20 percent evaluation for residuals of cold injury, left foot, is granted subject to statutory and regulatory provisions governing the payment of monetary benefits. A 20 percent evaluation for residuals of cold injury, right hand, is granted subject to statutory and regulatory provisions governing the payment of monetary benefits. A 20 percent evaluation for residuals of cold injury, left hand, is granted subject to statutory and regulatory provisions governing the payment of monetary benefits. A TDIU is denied. __________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs