Citation Nr: 1121402 Decision Date: 06/02/11 Archive Date: 06/09/11 DOCKET NO. 10-22 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE What evaluation is warranted for Raynaud's phenomenon from May 6, 2009? REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1992 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDINGS OF FACT 1. For the period from May 6 to October 6, 2009, the evidence of record does not show characteristic attacks of Raynaud's phenomenon occurring at least daily. 2. In a statement dated October 7, 2009, the Veteran reported that he suffered with daily attacks of Raynaud's, sometimes 2 to 3 a day. CONCLUSIONS OF LAW 1. For the period from May 6, to October 6, 2009, the criteria for an evaluation greater than 20 percent for Raynaud's phenomenon were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7117 (2010). 2. For the period since October 7, 2009, the criteria for a 40 percent evaluation, and no more, for Raynaud's phenomenon are met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7117. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned for Raynaud's phenomenon, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The claims file contains VA medical records and private medical records. The Veteran underwent examinations in April 2009 and April 2010. On review, the information in the claims file is adequate for rating purposes. There is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis In August 2009, the RO granted entitlement to service connection for Raynaud's phenomenon as directly related to military service and assigned a noncompensable evaluation effective May 6, 2009. The Veteran disagreed with the decision and in May 2010, the RO increased the evaluation for Raynaud's phenomenon to 20 percent disabling, also effective May 6, 2009. The Veteran subsequently perfected this appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The United States Court of Appeals for Veterans Claims (Court) also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Pursuant to the rating schedule, Raynaud's syndrome is evaluated as follows: characteristic attacks occurring one to three times a week (10 percent); characteristic attacks occurring four to six times a week (20 percent); characteristic attacks occurring at least daily (40 percent); with two or more digital ulcers and history of characteristic attacks (60 percent); and with two or more digital ulcers plus autoamputation of one or more digits and history of characteristic attacks (100 percent). 38 C.F.R. § 4.104, Diagnostic Code 7117. For purposes of this section, 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 and ears are involved. Id. at Note. In his VA Form 9, the Veteran asserted that there was error in deciding his claim because VA used the wrong rating criteria. The criteria pertaining to the evaluation of Raynaud's syndrome was revised effective January 12, 1998. On review, the current version of Diagnostic Code 7117 was used in the initial rating decision. The Board acknowledges that the former version of the regulation was set forth in the May 2010 statement of the case in the section titled "Pertinent Laws; Regulations; Rating Schedule Provisions". Notwithstanding, the correct version was discussed in the reasons and bases. Specifically, the Veteran was informed that an evaluation of 20 percent is assigned if characteristic attacks occur four to six times a week and that a higher evaluation of 40 percent was not warranted unless characteristic attacks occur at least daily. The term "characteristic attacks" was also defined in the statement of the case. A VA primary care note dated in December 2008 indicates that the Veteran reported that the end of his digits turn white at times, but he has not been watching that closely. On examination, there was no edema or cyanosis. Peripheral pulses were 2+ and sensation was intact. The assessment included possible Raynaud's. The Veteran was given a trial of gabapentin/capsaicin for pain. The Veteran underwent a VA cold injury examination in April 2009. He denied having amputation or other tissue loss. He reported that his hands and feet were sensitive to cold weather and he apparently had Raynaud's phenomenon. He also reported hyperhydrosis, and described tingling-type paresthesias in his hands and feet. He reported having a cold feeling in his hands and feet without relationship to the season. On physical examination, dorsalis pedis pulses were 2+ bilaterally. There was slightly decreased light touch sensation when his feet were tested with monofilament. VA primary care note dated in May 2009 indicates the Veteran requested evaluation for Raynaud's. He wanted to see a rheumatologist and was interested in medication as conservative measures were not working well. On examination, there was no edema or cyanosis. The assessment was Raynaud's. The Veteran was prescribed amlodipine 2.5mg daily. The Veteran underwent a rheumatology consult in June 2009. He reported that his fingers get clammy and then turn white with cold weather and air condition. Objectively, the Allen test was normal in both hands. The hands were cooler to touch than the arms and the toes were cooler than the legs. Assessment was Raynaud's phenomenon symptoms. Vascular studies were ordered to check hand circulation. The Veteran underwent arterial studies in August 2009. The impression was that the study was absolutely normal and was consistent with palpable pulses on exam, and not surprising when he has no symptoms suggesting vascular disease. A September 16, 2009 telephone note indicates that the Veteran was requesting a statement that the number of attacks due to Raynaud's was 2-3 a week. A primary care note dated the same date indicates that the hands and feet were cool and clammy. There was no edema or cyanosis. A September 17, 2009 rheumatology telephone note indicates that the Veteran stated he has Raynaud's phenomenon several times per week. On September 29, 2009, the Veteran presented to the VA emergency department for tingling and redness to the fingers and toes. He had tried warm water, keeping warm, and taking medications. He wanted something stronger for the pain. On examination, the fingers were cold to the touch. The feet were cold to the toes. Distal pulses were normal and no ulcers were seen. In his October 2009 notice of disagreement, the Veteran reported that he suffered from daily attacks of Raynaud's, sometimes two or three times a day. In November 2009, the Veteran was seen in the VA rheumatology clinic. He reported that his fingers change red to pale to blue daily. He denied joint swelling in the hands but estimated swelling in the feet three times a week. Objectively, the hands and feet were warm and a normal color. Amlodipine was increased to 5 mg. In December 2009, the dose was increased to 10 mg daily. The Veteran most recently underwent a VA examination in April 2010. He reported having three or four attacks a day with numbness and tingling in his fingers and toes with change in coloration initially with red to pale and pale white to blue, lasting anywhere from 45 minutes to an hour and 15 minutes. He stated it is very severe and there is unbearable numbness and tingling in his fingers. It affects his work and his daily activities. He reported that he is very sensitive to cold weather and he has to wear sweaters, socks and gloves in air conditioned rooms. He tried gabapentin which helps sometimes and also using capsaicin cream. He reported no improvement with amlodipine. On physical examination, he had cold fingers in both hands. There was mild pallor noted on the fingers but no other discoloration. The toes felt warm to the touch and he had black discoloration of the left fifth toe. Distal pulses were present in the radial and dorsalis pedis. There was no digital ulceration noted in any of the fingers or toes. The diagnosis was Raynaud's syndrome with recurrent attacks per history three to four times daily. The examiner noted the Veteran did have subjective complaints of severe attacks three to four times daily with change in coloration precipitated by change in weather and emotional stress. In June 2010, the representative argued that the Veteran's report of daily attacks with numbness, tingling, and color changes is representative of a 40 percent disability rating. As noted, the Veteran's disability is currently evaluated at 20 percent. In order to warrant a higher evaluation, there must be evidence of characteristic attacks occurring at least daily. In making this determination, the Board observes that a layperson is competent to report on matters observed or within his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to testify about observable symptoms, such as cold, numbness, pain, and color changes in his extremities (i.e., Raynaud's symptoms). See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). After reviewing the evidence of record, the Board finds that a 40 percent evaluation is warranted for service-connected Raynaud's phenomenon effective October 7, 2009, which is the date of the Veteran's statement indicating that he suffers with daily attacks. Treatment notes and statements from this date onward support the claim of daily attacks. In determining that an increased evaluation is warranted, the Board finds the Veteran's statements regarding frequency credible. There is, however, no evidence of digital ulcers and an evaluation greater than 40 percent is not warranted. For that portion of the appeal period prior to October 7, 2009, however, an evaluation greater than 20 percent is not warranted. Evidence of record does not support a finding of characteristic daily attacks. Indeed, by the Veteran's own statements, he experienced attacks "several times per week" and "2-3 a week". The Board has effectively assigned staged ratings. Fenderson. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). As discussed, the above rating criteria reasonably describe the Veteran's disability level and symptomatology resulting from his service-connected Raynaud's phenomenon. Higher evaluations are available for greater levels of disability. As the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluations are adequate, and no referral for extraschedular evaluation is in order. Id. Evidence of record shows that the Veteran is currently employed and a claim for a total disability evaluation based on individual unemployability (TDIU) is not raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER For the period from May 6 to October 6, 2009, entitlement to an evaluation greater than 20 percent for Raynaud's phenomenon is denied. For the period beginning October 7, 2009, entitlement to a 40 percent evaluation, and no more, for Raynaud's phenomenon is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs