Citation Nr: 1044110 Decision Date: 11/23/10 Archive Date: 12/01/10 DOCKET NO. 10-33 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for frostbite of the bilateral upper extremities. 2. Entitlement to an initial evaluation in excess of 10 percent for frostbite of the right foot. 3. Entitlement to an initial evaluation in excess of 10 percent for frostbite of the left foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1949 to November 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2004 and August 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Following the January 2004 rating decision, in January 2008 the Board remanded the Veteran's claims of service connection for frostbite of the bilateral feet and in a March 2008 rating decision the RO granted service connection for frostbite of the right and left foot, with separate 10 percent evaluations, effective April 22, 2003. The Veteran filed a timely notice of disagreement (NOD) and substantive appeal regarding the March 2008 rating decision regarding the evaluation of his bilateral foot frostbite disabilities. See 38 C.F.R. § 20.201 (2010). The August 2009 rating decision, in pertinent part, denied service connection for frostbite of the bilateral upper extremities. Thus, the issues have been re-characterized to comport to the evidence of record and development of the Veteran's claims. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002 and Supp. 2010). The issue of service connection for frostbite of the bilateral upper extremities is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Frostbite of the right foot is productive of pain and nail abnormalities. 2. Frostbite of the left foot is productive of pain and nail abnormalities. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 20 percent, but no more, for frostbite of the right foot have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1- 4.14, 4.104, Diagnostic Codes (DCs) 7117, 7122 (2010). 2. The criteria for an initial evaluation of 20 percent, but no more, for frostbite of the left foot have been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1- 4.14, 4.104, Diagnostic Codes (DCs) 7117, 7122 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The issue of the evaluation to be assigned the now-service connected right and left frostbite of the feet disabilities are "downstream" issues. Hence, additional notification is not required. See Hartman v. Nicholson, 19 Vet. App. 473 (2006) aff'd by Hartman v. Nicholson, No. 06-7303 (Fed. Cir. Apr. 5, 2007). Notwithstanding, the RO provided the appellant with pre- adjudication notice with regard to entitlement to service connection in a June 2003 letter. Post adjudication notice, including that concerning the issue of establishing higher evaluations and effective dates, was provided by letters dated in March 2006, February 2008, January 2009, and May 2009. The claims were subsequently re-adjudicated in an April 2010 statement of the case (SOC). The Veteran had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). VA has obtained service treatment records (STRs), assisted the Veteran in obtaining evidence, afforded the Veteran the opportunity to give testimony before the Board, and afforded the Veteran adequate medical examinations as to the severity of his frostbite of the right and left foot. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claim file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The Veteran seeks initial evaluations in excess of 10 percent for frostbite of the right and left feet. The Veteran contends that he suffers daily pain and coldness with his feet. A March 2008 rating decision granted the Veteran service connection for frostbite of the right and left feet, assigning separate 10 percent evaluations effective April 22, 2003, under 38 C.F.R. § 4.104, DC 7122. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. During an appeal of a disability rating, either from an initial rating assigned on granting of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability impairment severity during an appeal. So, staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rating a musculoskeletal disability, functional loss due to pain is a factor. Other factors include less movement than normal, weakened movement, excess fatigability, pain on movement, and painful motion. 38 C.F.R. § 4.40, 4.45, and 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Assigning multiple ratings for the Veteran's left and right foot frostbite disabilities based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14. However, two notes follow the diagnostic criteria set forth in 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. Id. Note (2) to DC 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 Veteran's disabilities have been evaluated under 38 C.F.R. § 4.104, DC 7122. Under this code, 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, or x-ray abnormalities (osteoporosis, subauricular punched out lesions, or osteoarthritis). A January 2008 private medical opinion notes that the Veteran has been under his care since 1999. Since that time he has had problems with Raynaud 's phenomenon in both feet, increasingly painful dysesthesias in his toes and feet that interfere with his sleep, and vesicular lesions involving both feet. His physical findings include cold mottled digits of the lower extremities, atrophic skin changes of both feet, lower extremity edema, and poor pedal pulses. Finally, it was noted that the Veteran has pathognomonic complications of frostbite. A VA examination was conducted in March 2008 and the examiner noted a review of the Veteran's claim file. The Veteran reported that he has had pain in his feet since service, tingling and numbness in his toes, and that his feet are cold most times. The examiner noted that there is no evidence of Raynaud's or reflect sympathic dystrophy. He does not have recurrent fungal infections, but does have some thickening of the nails. He does have stiffness of the joints, but there is no edema or excess sweating. A physical examination revealed that the Veteran walks with a normal gait, skin color was normal, that there was no edema, that his feet were warm and dry, had no atrophy, no ulceration, no scars, no tenderness on palpitation of the plantar surface of the metatarsal bones, that he does not have peripheral pulses or skin circulation, that his nails are slightly thickened with no evidence of fungus, that there is no skin atrophy, that he has pinprick to the dorsum of the foot to toes and sole, that he has reasonable strength, and that he has no pes planus. He has a callus on the right and left fifth toes. Medical imaging of the feet revealed no fractures, dislocations, mild flexion deformities of the second 5th joint bilaterally, soft tissues that were unremarkable, and arches within normal limits. An impression of cold injury to the right and left foot, residual symptoms of cold injury, bilateral foot, was given. A VA examination was conducted in June 2009 and the examiner noted a review of the Veteran's claim file. The Veteran reported that he experiences daily neuropathic pain symptoms in his bilateral feet, 6/10, and flare-up pain 9/10 in intensity, daily. A physical examination revealed a wart on the dorsum of the right forefoot, and hammertoe formations of the toes 2/5 with a minimal callous of the fifth toe on the right foot. The left foot had moderate hammertoe formations of the left 2/5 toes and callus of the fifth toe. No fissuring, erosion, or excessive callus formation is present. Plantar arches are present and age appropriate. Sensation is intact to light touch for all dermatomes of the bilateral feet. There was no appareant pain, loss of motion, weakness, fatigability, or loss of incoordination during three repetitions of motion. Medical imaging of the feet revealed no fractures, dislocations, mild flexion deformities of the second 5th joint bilaterally, soft tissues that were unremarkable, and arches within normal limits. An assessment of xerosis, hammertoes 2-5, mild, of the bilateral feet was given. Under DC 7122, a 20 percent evaluation requires 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). The March 2008 VA examination notes that the Veteran experiences pain and has nails that are slightly thickened, which the Board interprets to be an abnormality. Thus, under DC 7122, the Veteran's right and left frostbite of the feet disabilities warrant separate 20 percent ratings. 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, or x-ray abnormalities (osteoporosis, subauricular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104, DC 7122. There is no competent evidence of record, either medical or lay, indicating that the Veteran's right or left foot suffers both nail abnormalities and tissue loss, color changes, impaired sensation, hyperhidrosis, or x-ray abnormalities such as osteoporosis, subauricular punched out lesions, or osteoarthritis. The January 2008 private medical opinion notes that the Veteran does have vesicular lesions involving both feet, however this is not an x-ray abnormality, nor is it a subauricular punched out lesion. Thus, the Veteran does not warrant a 30 percent rating for frostbite of the right or left foot. 38 C.F.R. § 4.104, DC 7122. 38 C.F.R. § 4.104, 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. There is no competent evidence of record indicating that the Veteran has any amputations involving either foot, or complications such as squamous cell carcinoma or peripheral neuropathy of his feet. Thus, separate ratings pursuant to 38 C.F.R. § 4.14, DC 7122 Note (1) are not warranted. 38 C.F.R. § 4.104. 38 C.F.R. § 4.104, DC 7122 Note (1), also instructs the rater to separately evaluate other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, unless it is used to support an evaluation under DC 7122. Raynaud's syndrome is diagnosed under 38 C.F.R. § 4.104, DC 7117. Raynaud's syndrome is evaluated as 10 percent disabling with characteristic attacks occurring one to three times per week. For purposes of Diagnostic Code 7117, characteristic attacks consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesias, and precipitated by exposure to cold or by emotional upsets. These evaluations are for the disease as a whole, regardless of the number of extremities involved or whether the nose or ears are involved. 38 C.F.R. § 4.104, Diagnostic Code 7117, Note. The January 2008 private medical opinion notes that the Veteran has Raynaud's phenomena in his feet. The March 2008 VA examination report notes that there is no evidence of Raynaud's. For the purpose of this decision only, giving the Veteran the benefit of the doubt, the Board concedes that the Veteran does indeed have Raynaud's phenomena or syndrome associated with his bilateral feet. However, the March 2008 VA examination notes that the Veteran has normal skin color of his feet and there is no competent evidence of record, medical or lay, indicating that the Veteran's feet undergo sequential color changes. Therefore he is not entitled to a compensable rating under 38 C.F.R. § 4.104, DC 7117. Furthermore, even if the Veteran's Raynaud syndrome of either foot did involve pain or paresthesias, assigning separate ratings for these symptoms under DC 7117 would constitute prohibited pyramiding. 38 C.F.R. § 4.14. The disabling effects of pain have been considered in evaluating the Veteran's service-connected frostbite disabilities, as indicated in the above discussions. See DeLuca, supra. The Veteran's complaints of pain during his VA and private examinations, and the examiner's observations of pain and painful motion, were considered in the level of impairment and loss of function attributed to his disabilities. At no time during the pendency of this claim has the Veteran's right or left frostbite disabilities of the feet met or nearly approximated the respective criteria for a rating in excess of 20 percent, and staged ratings are not for application. See Hart, 21 Vet. App. at 505. The preponderance of the evidence is against ratings in excess of 20 percent for frostbite of the right and left foot disabilities; there is no doubt to be resolved; and higher ratings are not warranted. Gilbert, supra; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Nor does the Veteran qualify for extra-schedular consideration for his service-connected disabilities. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. Here, the record does not establish that the rating criteria are inadequate. To the contrary, the very symptoms that the Veteran describes and the findings made by the various health professionals are the symptoms included in the criteria found in the rating schedule for frostbite and cold injury residual disabilities. And as discussed above, when Veteran's symptoms and the effects of his frostbite of the right and left foot disabilities are compared to the criteria in the ratings schedule, the current 20 percent ratings accurately reflects the level of severity of his disabilities. The schedular criteria are not inadequate for rating this Veteran's disabilities, and therefore referral for extra-schedular consideration is not warranted. ORDER Entitlement to an initial evaluation of 20 percent, but no more, for frostbite of the right foot is granted, subject to the rules and regulations governing the payment of VA monetary benefits. Entitlement to an initial evaluation of 20 percent, but no more, for frostbite of the left foot is granted, subject to the rules and regulations governing the payment of VA monetary benefits. REMAND The Veteran seeks service connection for frostbite of the bilateral upper extremities. He contends that his current frostbite of the bilateral upper extremities is related to exposure to cold during service. Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A January 2008 private medical opinion notes that the Veteran has been under his care since 1999 and since that time has had problems with Raynaud's phenomenon in both hands. Physical findings include cold mottled digits of the upper extremities. The physician noted that the Veteran has a history of frostbite injury during service and has signs of symptoms of pathognomonic of complications of frostbite. A June 2009 VA examination was conducted to determine the nature and etiology of the Veteran's claimed frostbite of the bilateral upper extremities. The examiner noted a review of the Veteran's claim file, but made no mention of the January 2008 private medical opinion. The June 2009 VA examiner assessed the Veteran with bilateral carpal tunnel syndrome, status post 2006 right arthroscopic carpal tunnel release, and degenerative joint disease (DJD) of the bilateral hands and wrists, and opined that it less likely as not that the Veteran's current bilateral hand and wrist condition is related to a cold injury in Korea during service. Given, the vastly differing diagnoses related to the Veteran's bilateral upper extremities contained in the January 2008 private medical opinion and June 2009 VA examination report, a new VA examination and opinion should be provided regarding the nature and etiology of the Veteran's claimed frostbite of the bilateral upper extremities disabilities. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159 (c). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. Schedule the Veteran for a VA medical examination to determine the nature and etiology of his claimed frostbite of the bilateral upper extremities disabilities. All necessary testing and examinations should be conducted. As to any current right or left upper extremity disability identified, the examiner is to provide an opinion as to whether it is at least as likely as not related to service. The examiner must accept as fact that the Veteran experienced a cold injury during service. The claim folder must be made available to the examiner for review in conjunction with the examination. The examiner must note and thoroughly discuss the January 2008 private medical opinion and reconcile his or her findings with the January 2008 private medical opinion. A detailed rationale for all medical opinions must be provided. 2. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If the claim remains denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs