Citation Nr: 0811387	
Decision Date: 04/07/08    Archive Date: 04/23/08

DOCKET NO.  05-03 274	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1. Entitlement to service connection for a scar of the left 
ear.  

2. Entitlement to an initial rating higher than 20 percent 
for residuals of a cold injury of the right foot.  

3. Entitlement to an initial rating higher than 20 percent 
for residuals of a cold injury of the left foot.  

4. Entitlement to a total disability rating for compensation 
based on individual unemployability.  

REPRESENTATION

Veteran represented by:	Texas Veterans Commission

WITNESS AT HEARING ON APPEAL
Veteran 
ATTORNEY FOR THE BOARD

J. Fussell, Counsel
INTRODUCTION

The veteran, who is the appellant, served on active duty from 
July 1977 to July 1981.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of rating decisions, dated in November 2004 and in 
January 2007, of the Department of Veterans Affairs (VA) 
Regional Office (RO) in Waco, Texas.  

In February 2008, the veteran appeared at a hearing before 
the undersigned Veterans Law Judge.  A transcript of the 
hearing is in the record.  At the hearing, the veteran 
submitted additional evidence and waived the right to have 
the evidence initial considered by the RO. 


FINDINGS OF FACT

1. The incision or scar of a sebaceous cyst in the area of 
the left ear is not a current disability, that is, it has not 
resulted in impairment of earning capacity. 

2. The cold residuals of the right foot include pain, 
numbness, and cold sensitivity without two or more of the 
following on either VA examination in September 2004 or in 
July 2006: tissue loss, nail abnormalities, color changes, 
hyperhidrosis, locally impaired sensation, or X-ray 
abnormalities. 

3. The cold residuals of the left foot include pain, 
numbness, and cold sensitivity without two or more of the 
following on either VA examination in September 2004 or in 
July 2006: tissue loss, nail abnormalities, color changes, 
hyperhidrosis, locally impaired sensation, or X-ray 
abnormalities.




4. The service-connected disabilities are residuals of a cold 
injury of the right foot, rated 20 percent; residuals of a 
cold injury of the left foot, rated 20 percent; bilateral pes 
planus, rated 10 percent disabling; and a scar from a left 
inguinal hernia repair, zero percent or noncompensably 
disabling; the combined rating, including the bilateral 
factor, is 50 percent, which does not meet the requisite 
percentage requirements for a total disability rating for 
compensation based on individual unemployability. 


CONCLUSIONS OF LAW

1. The incision or scar of a sebaceous cyst in the area of 
the left ear and is not a disability due to disease or injury 
that was incurred in or aggravated by service.  38 U.S.C.A. 
§ 1131 (West 2002); 38 C.F.R. § 3.303 (2007).  

2. The criteria for an initial rating higher than 20 percent 
for residuals of a cold injury of the right foot have not 
been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 
38 C.F.R. § 4.104, Diagnostic Code 7122 (2007).  

3. The criteria for an initial rating higher than 20 percent 
for residuals of a cold injury of the left foot have not been 
met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 
4.104, Diagnostic Code 7122 (2007).  

4. The criteria for a total disability rating for 
compensation based on individual unemployability have not 
been met, and the criteria for referral for an 
extra-schedular rating have not been met.  38 U.S.C.A. § 1155 
(West 2002); 38 C.F.R. §§ 3.321(b), 4.104, Diagnostic Code 
7122 (2007).  




The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and 
implemented in part at 38 C.F.R § 3.159, amended VA's duties 
to notify and to assist a claimant in developing information 
and evidence necessary to substantiate the claims.  

Duty to Notify

Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of 
the information and evidence not of record that is necessary 
to substantiate the claims, which information and evidence VA 
will obtain, and which information and evidence the claimant 
is expected to provide.  

Under 38 C.F.R. § 3.159, VA must request that the claimant 
provide any evidence in the claimant's possession that 
pertains to the claims.  

Also, the VCAA notice requirements apply to all five elements 
of a service connection claim.  The five elements are: 
1) veteran status; 2) existence of a disability; 3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

In claims for increase, the VCAA notice requirements include 
notice of the type of evidence needed to substantiate the 
claims, namely, 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.  
Also, 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 VA must provide at least 
general notice of that requirement to the claimant.  Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008). 

The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must 
be provided to a claimant before the initial unfavorable 
adjudication by the RO.  Pelegrini v. Principi, 18 Vet. 
App. 112 (2004).  

Claims for Increase 

In this case, the RO provided the veteran with substantial 
content-complying VCAA notice on the underlying claims of 
service connection for residuals of cold injuries by letter, 
dated in June 2004.  Where, as here, service connection has 
been granted and initial disability ratings have been 
assigned, the claims of service connection have been more 
than substantiated, the claims have been proven, thereby 
rendering 38 U.S.C.A. § 5103(a) notice no longer required 
because the purpose that the notice was intended to serve has 
been fulfilled.  

Furthermore, once a claim for service connection has been 
substantiated, the filing of a notice of disagreement with 
the RO's decision rating the disabilities does not trigger 
additional 38 U.S.C.A. § 5103(a) notice.  Therefore, further 
VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is 
no longer applicable in the claims for higher ratings for the 
residuals of the cold injuries.  Dingess at 19 Vet. App. 490-
91. 

Claim for Service Connection and for a Total Rating 

As for the claim of service connection for scar of the left 
ear and the claim for a total rating, the RO provided pre-
adjudication VCAA notice by letter, dated in June 2006.  The 
veteran was notified of the evidence needed to substantiate 
the claim of service connection, namely, evidence of an 
injury or disease in service or event in service, causing 
injury or disease; evidence of current disability; and 
evidence of a relationship between the current disability and 
the injury, disease, or event in service.  The veteran was 
also notified of the evidence needed to substantiate the 
claim for total disability rating, namely, evidence of 
unemployability due to service-connected disability and the 
minimal schedular rating of 70 percent, where there are two 
or more disabilities with at least one disability ratable at 
40 percent or more.  

The veteran was notified that VA would obtain service 
records, VA records, and records of other Federal agencies, 
and that he could submit private medical records or authorize 
VA to obtain private medical records on his behalf.  The 
veteran was asked to submit any evidence that would include 
that in his possession.  The notice included the provisions 
for the effective date of the claims and for the degree of 
disability assignable. 

As for content of the VCAA notice, the document substantially 
complied with the specificity requirements of Quartuccio v. 
Principi, 16 Vet. App. 183 (2002) (identifying evidence to 
substantiate a claim and the relative duties of VA and the 
claimant to obtain evidence); of Charles v. Principi, 16 Vet. 
App. 370 (2002) (identifying the document that satisfies VCAA 
notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) 
(38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. 
App. 473 (notice of the elements of the claim); and of 
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) (to the 
extent that the issue is unemployability and the minimum 
percentage requirements). 

Duty to Assist

As required by 38 U.S.C.A. § 5103A, VA has made reasonable 
efforts to identify and obtain relevant records in support of 
the claims.  The RO has obtained the service medical records 
and VA records.  The veteran was afforded VA examinations on 
the claims for increase.  McLendon v. Nicholson, 20 Vet. App. 
79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).  

VA has not conducted medical inquiry in the form of a VA 
compensation examination in an effort to substantiate the 
claim of service connection for a scar of the left ear 
because there is no evidence of a currently diagnosed 
disability or persistent or recurrent symptoms of disability.  
Under these circumstances, a medical examination or medical 
opinion is not required under 38 C.F.R. § 3.159(c)(4). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Service Connection for a Scar of the Left Ear 

Principles of Service Connection

Compensation is paid for disability resulting from personal 
injury suffered or disease contracted in line of duty.  38 
U.S.C.A. § 1131.  

The term "disability" in 38 U.S.C.A. § 1131 means 
impairment of earning capacity due to disease, injury, or 
defect, rather than to the disease, injury, or defect itself. 
Allen v. Brown, 7 Vet. App. 439 (1995). 

For the showing of chronic disease in service, there is 
required a combination of manifestations sufficient to 
identify the disease entity, and sufficient observation to 
establish chronicity at the time, as distinguished from 
merely isolated findings or a diagnosis including the word 
"chronic."  Continuity of symptomatology is required only 
where the condition noted during service is not, in fact, 
shown to be chronic or where the diagnosis of chronicity may 
be legitimately questioned.  When the fact of chronicity in 
service is not adequately supported, then a showing of 
continuity after discharge is required to support the claim. 
38 C.F.R. § 3.303(b).

Service connection may also be granted for a disease 
diagnosed after discharge, when all the evidence, including 
that pertinent to service, establishes that the disease was 
incurred in service. 38 C.F.R. § 3.303(d).

Factual Background 

The service medical records show that in July 1980 the 
veteran had an incision and drainage of an infected 
periauricular sebaceous cyst in the area of the left ear.  
After standard follow-ups procedures, there was no 
recurrence.  There were no subsequent complaints referable to 
the incision during service. 

After service, VA records, covering the period from 1998 to 
2007, contain no complaint, finding, history, or symptom 
associated with the incision or scar. 

In February 2008, the veteran testified that he had no 
symptoms from the in-service incision that adversely affected 
him.  

Analysis 

As the service medical records do not have the combination of 
manifestations sufficient to identify a chronic disability 
associated with the incision or scar of a cyst and sufficient 
observation to establish chronicity at the time, as there was 
one treatment without complication or residual disability, 
then a showing of continuity after discharge is required to 
support the claim.

After service, there is no evidence of chronic residuals of 
the incision or scar, which is evidence against continuity of 
symptomatology.  38 C.F.R. § 3.303(b); Maxson v. West, 12 
Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v Gober, 
230 F.3d 1330, 1333 (Fed. Cir. 2000) (It was proper to 
consider the veteran's entire medical history, including a 
lengthy period of absence of complaints.). 

On the basis of the evidence, the veteran is not currently 
shown to have any disability as a result of the incision or 
scar for a cyst in the area of the left ear, which was 
documented during service. The term "disability" in 38 
U.S.C.A. § 1130 means impairment of earning capacity due to 
disease, injury, or defect, rather than to the disease, 
injury, or defect itself.  Allen v. Brown, 7 Vet. App. 439 
(1995).  

In other words that an incision was shown in service, alone, 
is not enough to establish entitlement to VA disability 
compensation, there must be a current disability resulting 
from the injury.  Chelte v. Brown, 10 Vet. App. 268, 271 
(1997).  In the absence of proof of a present disability 
attributable to the incision or scar, there can be no valid 
claim of service connection.  Brammer v. Derwinski, 3 Vet. 
App. 223, 225 (1992). 

As the preponderance of the evidence is against the claim, 
the benefit-of-the-doubt standard of proof does not apply.  
38 U.S.C.A. § 5107(b).  

II. Claims for Increase 

Rating Criteria

Disability evaluations are determined by the application of 
VA's Schedule for Rating Disabilities (Rating Schedule), 
38 C.F.R. Part 4.  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; 38 C.F.R. § 4.1.  

The Board will consider whether separate ratings may be 
assigned for separate periods of time based on facts found, a 
practice known as "staged ratings," whether it is an 
initial rating case or not.  Fenderson v. West, 12 Vet. 
App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 
(2007).

The service-connected cold injuries are currently separately 
rated as 20 percent disabling under 38 C.F.R. § 4.104, 
Diagnostic Code 7122, effective from the date that service 
connection was established in May 2004.     

Under Diagnostic Code 7122, the criteria for the next higher, 
30 percent are 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, or X-ray abnormalities 
(osteoporosis, subarticular punched out lesions, or 
osteoarthritis).  



Factual Background 

On VA examination in September 2004, the pertinent findings 
for the feet were pain, numbness, cold sensitivity, and 
fungal infection of the toenails.  There was no tissue loss, 
color changes, locally impaired sensation, hyperhidrosis, X-
ray abnormalities, or peripheral neuropathy.  The examiner 
stated that the veteran was unemployable due to the residuals 
of the cold injuries.

VA records show that on a podiatry consultation in October 
2004, the veteran complained of painful feet.  The hallux 
toenails were non-symptomatic.  There was no evidence of 
joint swelling, redness, or increased temperature of the 
feet.  The skin was cool and slightly dry.  Muscle strength 
was grossly intact.  Sensation in the toes and feet was 
intact.  In November 2004, the veteran was given special foot 
wear.  On a foot consultation in January 2005, there were no 
changes from the podiatry consultation in October 2004. 

VA records disclose that in May 2006 the veteran complained 
of numbness in his feet, when he was on his feet for too long 
and while driving.  On examination he had no myalgias, joint 
pains, joint swelling, joint deformity or gait disturbance.  
He did report having toe numbness.  Neurologically, there was 
no numbness, tingling. or paresthesias.  

On VA examination in July 2006, the veteran complained of 
increased symptoms in his feet and an inability to work 
because of it.  He indicated that he could no longer install 
furniture because his feet would hurt and swell and become 
numb.  On physical examination, there was decreased vibratory 
sensation in each foot and also decreased pinprick sensation 
in the toes and forefeet.  Sensation to light touch was 
maintained in each foot.  There was no discoloration of the 
skin.  The diagnosis was mild sensory peripheral neuropathy 
and pain in the toes, more likely than not related to cold 
injury without evidence of other cold injury.  

VA records in 2006 show that the obtained new prosthetic 
shoes.  

In February 2008, the veteran testified that due to his cold 
injuries he had numbness of his toes, particularly when 
driving long distances, and that his feet hurt in cold 
weather.  

Analysis

Because of the potential for a separate rating for a separate 
period of time based on facts found, the Board will 
separately rate the feet based on the VA examination in 
September 2004 and VA records more contemporaneous with the 
examination in 2004 and the VA examination in July 2006 and 
the VA records more contemporaneous with the examination in 
2006

On VA examination in September 2004, the pertinent findings 
for the feet were pain, numbness, cold sensitivity, and 
fungal infection of the toenails.  There was no tissue loss, 
color changes, locally impaired sensation, hyperhidrosis, or 
X-ray abnormalities.  

On a podiatry consultation in October 2004, the veteran 
complained of painful feet.  The hallux toenails were 
non-symptomatic.  The skin was cool and slightly dry.  
Sensation in the toes and feet was intact.  On a foot 
consultation in January 2005, there were no changes from the 
podiatry consultation in October 2004.

The record shows that there was evidence of nail 
abnormalities, but neither tissue loss, color changes, 
locally impaired sensation, hyperhidrosis, nor X-ray 
abnormalities, was evident.  As there is  pain, numbness, or 
cold sensitivity plus nail abnormalities, but one or more of 
the following: tissue loss, color changes, locally impaired 
sensation, hyperhidrosis, or X-ray abnormalities has not been 
demonstrated, the criteria for a higher rating under 
Diagnostic Code 7122 for either foot have not been met.



VA records disclose that in May 2006 the veteran complained 
of numbness in his feet, but no paresthesia was found.  On VA 
examination in July 2006, the veteran complained of increased 
symptoms in his feet.  On physical examination, there was 
decreased vibratory sensation in each foot and also decreased 
pinprick sensation in the toes and forefeet.  Sensation to 
light touch was maintained in each foot.  There was no 
discoloration of the skin.  The diagnosis was mild sensory 
peripheral neuropathy and pain in the toes, more likely than 
not related to cold injury without evidence of other cold 
injury.  

Although the record shows evidence of pain, numbness, or cold 
sensitivity plus impaired sensation, but one or more of the 
following: tissue loss, color changes, nail abnormality, 
hyperhidrosis, or X-ray abnormalities has not been 
demonstrated, the criteria for a higher rating under 
Diagnostic Code 7122 for either foot have not been met. 

As the preponderance of the evidence is against the claims, 
the benefit-of-the-doubt standard of proof does not apply.  
38 U.S.C.A. § 5107(b).

III. Total Disability Rating 

Criteria

A total disability rating for compensation may be assigned, 
where the schedular rating is less than total, when the 
disabled person is, in the judgment of the rating agency, 
unable to secure or follow a substantially gainful occupation 
as a result of service-connected disabilities; provided that, 
if there are two or more service-connected disabilities, 
there shall be at least one disability ratable at 40 percent 
or more, and sufficient additional disability to bring the 
combined rating to 70 percent or more.  38 C.F.R. § 4.16.  



The veteran's service-connected disabilities are residuals of 
a cold injury of the right foot, rated 20 percent; residuals 
of a cold injury of the left foot, rated 20 percent 
disabling; bilateral pes planus, rated 10 percent disabling; 
and a residual scar from a left inguinal hernia repair, 
assigned a noncompensable disability rating.  These result in 
a combined disability evaluation, including the bilateral 
factor, of 50 percent.  

Factual Background

In his application for a total disability rating, dated in 
May 2006, the veteran stated that he last worked full time as 
a furniture installer in 2002, that he did not leave his last 
employment due to his disability, that he became too disabled 
to work in July 2005, and that he had not tried to find 
employment since he became too disabled to work.  He stated 
that he completed high school. 

VA records disclose that from May to August 2004 the veteran 
was hospitalized for drug abuse and placed in a VA 
Domiciliary. It was noted that the veteran had worked as a 
technician for a furniture company for fifteen years from 
1987 to 2002, when he was laid off; he then had odd jobs or 
temporary work since then.  According to the veteran he 
relapsed into drug abuse after he lost his job and he could 
not find regular employment.  

VA records show that on vocational assessments in October 
2004 and in March 2005, the vocational specialist reported 
that the veteran had the ability to do various jobs because 
he had no physical limitations.  In March 2005, it was noted 
that the veteran had obtained full time employment as a 
courier.  In July 2006, it was noted that the veteran was not 
working. 

On VA examination in July 2006, the veteran complained that 
he was unable to  work, in part, because of his service-
connected residuals of an inguinal hernia repair.  On 
physical examination, there was a well-healed left inguinal 
surgical scar, and no evidence of recurrence.  The diagnosis 
was a healed left inguinal hernia repair with no tenderness 
or recurrence.  

On VA examination in December 2006, the veteran complained of 
painful feet.  On physical examination the veteran walked 
with a normal gait.  As to the right foot, he had pes planus 
and calluses under the right great toe and the 5th toe.  With 
repetitive motion, there was no change in pain level, 
coordination, fatigue, or endurance.  The Achilles tendon was 
aligned.  He had evidence of abnormal weight-bearing as 
manifested by his calluses.  Similar findings were reported 
for the left foot. 

In February 2008, the veteran testified that he was released 
from his job because he kept missing work due to problems 
with his feet.  He stated that he had applied for disability 
with the Social Security Administration, but he was denied.  
He asked that his claim for a total disability rating based 
be considered on an extra-schedular basis.  

Analysis

Therefore the veteran does not meet the threshold minimum 
percentage rating requirements of 38 C.F.R. § 4.16 for a 
total disability rating for compensation based on individual 
unemployability.  

Where a veteran fails to meet the percentage requirement of 
38 C.F.R. § 4.16(a), entitlement to the benefit may be 
established if it is determined that the case presents such 
an exceptional disability picture that the benefit should be 
awarded on an extra-schedular basis.  38 C.F.R. 
§ 3.321(b)(1). 

While the Board does not have authority to grant an extra-
schedular rating in the first instance, the Board does have 
the authority to decide whether the claim should be referred 
to the VA Director of the Compensation and Pension Service 
for consideration of an extra-schedular rating.

The record shows that the veteran has not required 
hospitalization for his service-connected disabilities.  And 
while the veteran testified he is unable to work because of 
his service-connected disabilities and on VA examination in 
September 2004, the examiner stated that the veteran was 
unemployable due to the residuals of the cold injuries, VA 
records show that on vocational assessments in October 2004 
and in March 2005, the vocational specialist reported that 
the veteran had the ability to do various jobs because he had 
no physical limitations.  In March 2005, it was noted that 
the veteran had obtained full time employment as a courier.  
In July 2006, although the veteran was not working, there is 
no evidence of marked interference with employment due to the 
service-connected disabilities. 

As the disability picture is not so exceptional or unusual as 
to render impractical the application of the regular 
schedular standards to the service-connected disabilities of 
cold injuries, bilateral pes planus, and residuals a left 
inguinal hernia repair, referral of the claim for a total 
rating for extra-schedular consideration is not in warranted.  
Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 
9 Vet. App.337 (1996).  


ORDER

Service connection for a scar of the left ear is denied.  

An initial rating higher than 20 percent for residuals of a 
cold injury of the right foot is denied.  

An initial rating higher than 20 percent for residuals of a 
cold injury of the left foot is denied.  

A total disability rating for compensation based on 
individual unemployability is denied.  



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs