Citation Nr: 1301418	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  99-08 717	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for bilateral pes planus.  

2.  Entitlement to service connection for a cervical spine disorder.  

3.  Entitlement to service connection for a lumbar spine disorder.  

4.  Entitlement to an initial evaluation in excess of 10 percent for residuals of cold injury of the right foot with Raynaud's syndrome, for the period from March 6, 1998 to March 6, 2004.  

5.  Entitlement to an initial evaluation in excess of 10 percent for residuals of cold injury of the left foot with Raynaud's syndrome, for the period from March 6, 1998 to March 6, 2004.  

6.  Entitlement to an effective date earlier than March 6, 2004, for the award of a 30 percent evaluation for residuals of cold injury of the right foot with Raynaud's syndrome.  

7.  Entitlement to an effective date earlier than March 6, 2004, for the award of a 30 percent evaluation for residuals of cold injury of the left foot with Raynaud's syndrome.  

8.  Entitlement to an effective date earlier than March 6, 1998 for award of service connection for residuals of cold injury of the right foot with Raynaud's syndrome.  

9.  Entitlement to an effective date earlier than March 6, 1998 for award of service connection for residuals of cold injury of the left foot with Raynaud's syndrome.  


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

James G. Reinhart, Counsel


INTRODUCTION

The Veteran had active service from June 1976 to June 1980. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  

In March 2009 and March 2010 decisions, the Board adjudicated the service connection and rating issues on appeal.  In the March 2009 decision, the Board denied service connection for bilateral pes planus.  In the March 2010 decision, the Board denied service connection for the cervical and lumbar spine disorders, denied ratings higher than 10 percent for residuals of cold injury with Raynaud's syndrome of each foot for the period from March 6, 1998 to March 6, 2004, and granted 30 percent ratings for those service-connected disabilities, effective March 6, 2004.  The Veteran appealed those determinations to the U.S. Court of Appeals for Veterans Claims (Veterans Court).  

In March 2012, the Veterans Court set aside that part of the March 2009 Board decision that denied service connection for pes planus and remanded the matter to the Board for further adjudication.  The Veterans Court also set aside those parts of the of the March 2010 Board decision denying service connection for cervical and lumbar spine disabilities, denying evaluations higher than 10 percent for residuals of cold injury bilaterally with an effective date of March 6, 1998, and assigning an effective date of March 6, 2004, for the award of 30 percent ratings for residuals of cold injuries; and remanded those matters for further adjudication.  

Review of the electronic ("Virtual VA") portion of the Veteran's claims file reveals that he underwent a VA examination in May 2011 with respect to a claim of entitlement to special monthly compensation (SMC).  That examination included examination of his feet.  The examination report is not favorable to the Veteran's claim of entitlement to service connection for pes planus or the ratings to be assigned for the service-connected disabilities prior to March 6, 2004.  It provides no indication that his pes planus was aggravated by his active service and no information as to the extent of disability of his cold injuries prior to March 6, 2004.  The examination report is therefore not pertinent to the issues before the Board and the Board may proceed to adjudicate the issues before it, without regard to that examination report.  See 38 C.F.R. § 20.1304(c) (2012).  

In the March 2012 decision, the Veterans Court noted that the Veteran had failed to demonstrate that he raised the issues of entitlement to SMC and to a total disability rating based on individual unemployability (TDIU) but could do so during after that decision.  Review of the Veterans Appeals Control and Locator System (VACOLS) reveals that the issue of SMC has been subsequently addressed by the RO but has not been certified to the Board.  The Board will therefore not address that issue at this time.  The Veteran has not raised the issue of TDIU since the Veterans Court's decision.  

The issues of entitlement to an effective date earlier than March 6, 1998 for award of service connection for residuals of cold injury, with Raynaud's syndrome, of the right foot and of the left foot, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Bilateral pes planus preexisted entrance into active service.  

2.  Bilateral pes planus was aggravated by active service.  

3.  A lumbar spine disorder did not have onset during the Veteran's active service and was not caused by his active service; and arthritis of the lumbar spine did not manifest within one year of separation from active service.  

4.  A cervical spine disorder did not have onset during the Veteran's active service and was not caused by his active service; and arthritis of the cervical spine did not manifest within one year of separation from active service.  

5.  Residuals of cold injury of the Veteran's right foot with Raynaud's syndrome manifested as pain, numbness, cold sensitivity, locally impaired sensation, nail abnormalities, and hyperhydrosis since March 6, 1998.  

6.  Residuals of cold injury of the Veteran's left foot with Raynaud's syndrome manifested as pain, numbness, cold sensitivity, locally impaired sensation, nail abnormalities, and hyperhydrosis since March 6, 1998.  

(CONTINUED ON NEXT PAGE)



CONCLUSIONS OF LAW

1.  The criteria for service aggravation of bilateral pes planus have been met.  38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2012).  

2.  The criteria for service connection for a lumbar spine disorder have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.159 (2012).  

3.  The criteria for service connection for a cervical spine disorder have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.159 (2012).  

4.  The criteria for a 30 percent evaluation for residuals of cold injury of the left foot with Raynaud's syndrome have been met since March 6, 1998.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.104 Diagnostic Code 7122 (1998 & 2012).  

5.  The criteria for a 30 percent evaluation for residuals of cold injury of the right foot with Raynaud's syndrome have been met since March 6, 1998.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.104 Diagnostic Code 7122 (1998 & 2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay 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 accordance with 38 C.F.R. § 3.159(b)(1).  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

In the present case, the unfavorable rating decision that led to this appeal was already decided and appealed prior to the enactment of the current § 5103(a) requirements in 2000.  The Veterans Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial rating decision, the RO did not err in not providing such notice.  Rather, the claimant has the right to a content complying notice and proper subsequent VA process.  Pelegrini, 18 Vet. App. at 120.  It is also noted that errors in notice are not presumed prejudicial to the claimant; whether any errors have resulted in prejudice must be ascertained on a case by case basis.  See generally, Shinseki v. Sanders, 129 S. Ct. 1696 (2009

This appeal arises from disagreement with the initial evaluations following the grant of service connection for cold injury residuals of the feet.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Regardless, the RO provided notice as to how VA assigns disability ratings in a letter sent to the Veteran in July 2008.  As to assignment of effective dates, the Board is remanding the issues of entitlement to effective dates earlier than March 6, 1998 for cold injury residuals of each foot, and thus no prejudice can result to the Veteran due to any action by the Board in the present decision with regard to that issue.  

As to the service connection issues on appeal, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in April 2001, January 2004, and May 2006, including the Dingess notice.  The claims were subsequently readjudicated in Supplemental Statements of the Case, for example in January 2008 and November 2009, thus curing any timing defect.  See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).  

Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content.  Therefore, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist the claimant in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for disability compensation benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

The RO has obtained service and VA treatment records as well as records associated with the Veteran's claim for Social Security disability benefits with the Social Security Administration (SSA).  Private treatment records have been obtained and associated with the claims file, either through the Veteran's own actions or with VA's assistance.  

The Board notes that in its March 2009 Remand, it directed the RO to obtain and associate with the claims files VA medical records from VA medical centers (VAMCs) in Cincinnati, and Atlanta or Decatur not already associated with the claims file.  Additional VA medical records from Atlanta have since been associated with the claims file.  The November 2009 Supplemental Statement of the Case noted that an electronic review of treatment records from the VAMC in Cincinnati did not show that he had received treatment there.  Additionally, the Board notes that the Veteran was provided a new VA examination in regards to his service-connected cold injury residuals in May 2009 complying with the March 2009 Board Remand.  

The Veteran was also provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  The Veterans Court has held that 38 C.F.R. § 3.103(c)(2) requires the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

Here, during the November 2008 hearing, the undersigned Veterans Law Judge identified the issues on appeal that are the subject of the instant adjudication.  Also, information was solicited regarding the nature of his arguments regarding each issue and there was clarification of the evidence necessary to establish entitlement to benefits.  Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim" were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, the hearing discussion did not reveal any evidence that might be available that either was not then of record or has not since been associated with the claims file.  As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record.

VA has provided the provided the Veteran with several examinations of his feet to determine the severity of his cold injuries during the relevant period of time on appeal; specifically examinations provided in October 2000 and March 2004.  Additionally, the Board provided the May 2009 examination, which addresses residuals of his cold injuries after March 2003.  Those examinations the Board finds adequate for that purpose because the examiners indicated review of the relevant history of the disabilities, provided a detailed description of the disabilities, and provided analysis to support the conclusions reached, where applicable.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007).  

In September 1998, VA afforded the Veteran a general medical examination.  The examiner noted the Veteran's report of sustaining a back injury during service and of injuries to his cervical spine in an automobile accident in 1990.  VA has not provided an examination specifically with regard to his pes planus.  

Here, the Board finds that VA has no further duty to provide any additional examinations or obtain any additional expert opinions with regard to the claims of entitlement to service connection.  As to the cervical and lumbar spine disorders claims, the evidence does not establish any in-service event, injury, or disease relevant to his cervical and lumbar spine disorders.  As the second factor for determining if VA has a duty to provide an examination is not present, VA has no duty to provide such examination or obtain an expert opinion.  

It is noted that the Veterans Court has held that where VA affords the Veteran an examination or obtains an expert opinion, it must ensure that the examination and/are opinion is adequate or inform the Veteran that such examination or opinion will not or cannot be provided or obtained.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  It is also noted that the examiner did not provide an expert opinion in the September 1998 general medical examination report that provided findings regarding his spine condition.  However, VA is not required to provide assistance if no reasonable possibility exists that such assistance would aid in substantiating a claim.  38 U.S.C.A. § 5103A(a)(2).  

Obtaining an expert opinion with regard to his spine claims would be providing assistance that does not have a reasonable possibility of substantiating the claims.  The Veteran bases those claims on an alleged injury incurred during an in-service fall from a helicopter and/or as secondary to his pes planus.  In the instant decision, the Board finds that the Veteran had no injury of his back during service, the helicopter incident did not occur, and that he is not entitled to service connection for pes planus.  These are findings of fact, and expert evidence could not reasonably be anticipated to provide other than wholly speculative evidence based solely on the Veteran's reports of in-service event; reports that the Board has determined are not credible.  As such, providing an examination or obtaining an expert opinion with regard to those claims has no reasonable possibility of substantiating those claims and VA therefore has no duty to provide any further assistance in this regard.  

With regard to his claim of entitlement to compensation for bilateral pes planus, that issue turns on whether his pes planus increased in severity during service.  There is sufficient medical evidence of record for the Board to make that determination and in the instant decision the Board grants service aggravation of his pes planus.  Although the award of service aggravation is less beneficial to the Veteran than an award of service connection, a retrospective medical opinion would not be probative of whether his bilateral pes planus preexisted entrance into service because such was noted upon examination at entrance into service.  Therefore VA has no duty to provide an examination or obtain an opinion with regard to that issue.  

Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claims.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


II.  Service Connection.

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  

Generally, the evidence must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or "nexus," between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)).  

There is a rebuttable presumption that certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012).  

Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  38 C.F.R. § 3.310(a) (2006 & 2012).  The secondary condition shall be considered a part of the original condition.  Id.  The phrase "due to or the result of" encompasses disability caused or aggravated by the service-connected disease or injury.  See Allen v. Brown, 7 Vet. App. 439 (1995).  


II.A.  Pes Planus - Facts

The Veteran contends that he currently suffers from severe bilateral pes planus that was incurred in, or aggravated by service.

The Veteran's service treatment records include the report of a December 1975 entrance examination in which it was noted that he had pes planus of one degree, not considered disabling.  Neither the selection box for a normal clinical evaluation of his feet nor the selection box for an abnormal clinical evaluation of his feet is checked.  In the associated report of medical history, the Veteran indicated that he did not then have nor had he previously had foot trouble.  In the March 2012 decision, the Veterans Court determined that the Board's determination that the Veteran's pes planus preexisted service was not clearly erroneous.  

Prior to January 31, 1978, the Veteran had complained of pain of his feet due to cold exposure but that date marked his first complaint of aching feet not due to cold exposure.  Medical personnel assessed moderate pes planus and prescribed arch supports.  The next day he reported more pain than before and was told to soak his feet and return to duty.  Six days later he complained of numbness in his feet and reported a history of swollen feet in extreme temperature conditions.  He reported that he had used arch supports for one week with no relief.  Examination found his arches flat and tender.  Medical personnel diagnosed moderate pes planus, advised him to continue to use arch supports, and filled out a request for orthopedics consult with regard to cold injury of his feet.  The request also noted that "[h]e does have pes planus & was given arch supports [illegible] week ago".  Provisional diagnosis was pes planus with recurrent foot pain.  A DA Form 3349 from that date documents that he was medically qualified for duty with limitations for 60 days.  Those limitations involved limited walking, no running, and no exposure to freezing temperatures.  

In May 1978 he requested an appointment with a podiatrist with regard to cold exposure injuries.  He was seen for complaints of frostbite in the orthopedic clinic in June 1978.  Medical personnel noted that he had moderate bilateral pes planus and advised him to wear arch supports.  A June 1978 surgery consult request documents that the Veteran reported pain due to cold exposure and the examination found both feet essentially within normal limits except for flat feet.  The requesting medical professional did not further address his pes planus.  A July 1978 the surgical clinic consultation report addressed his cold injuries and stated that his feet were essentially within normal limits except for flat feet.  An August 1978 treatment entry includes an annotation of cold weather injury, possible fracture of the feet, and swollen feet.  The surgery clinic requested an orthopedics consult and in August 1978 the orthopedics clinic noted his complaint of pain and that examination revealed moderate pes planus.  It noted that x-rays showed tarsals, metatarsals, and phalanges intact without evidence of fracture and that there was no significant articular or soft tissue abnormality identified.  This is consistent with a contemporaneous radiology report.  The medical professional again advised him to wear arch supports, and indicated that no follow-up was required.  

In November 1978, he was found to be medically qualified for duty with permanent limitations due to his cold injury to the feet.  

Noted on his May 1980 separation medical examination report was that he had suffered cold injuries of his feet; there is no mention of pes planus.  In an associated report of medical history, the Veteran endorsed that the either then had or previously had foot trouble.  A physician annotated the report that he was previously treated for fallen arches.   

Post service, the Veteran filed a claim of entitlement to service connection for residuals of frostbite in July 1980.  He did not mention pes planus.  In 1996 he requested a copy of his service treatment records from VA.  In February 1998, he filed his claim of entitlement to service connection for pes planus.  

The earliest post service mention of flat feet or pes planus is found in records of treatment by Kennesaw Family Physicians in October 1996.  At that time he complained of bilateral foot pain that had been intermittent since his military service.  The medical professional found mild flat feet on examination and assessed bilateral foot pain, possibly plantar fasciitis.  Next, is a July 1998 treatment note in which Dr. "F.P.," a podiatrist, documented the Veteran's s complaint of bilateral arch pain of approximately three years duration.  Dr. F.P. provided two assessments - severe bilateral plantar fasciitis, and flat foot.  Notes from one week later include an assessment of bilateral plantar fasciitis and that the Veteran had demonstrated significant relief of pain with strappings and desired a prescription for permanent arch supports.  

In his April 1999 substantive appeal, the Veteran contended that his military duties, including wearing combat boots, jumping, and running, caused his pes planus.  

In October 2000, VA afforded the Veteran a medical examination through QTC Medical Services.  X-ray study of his feet revealed no abnormality.  Physical examination revealed mild flat feet.  

In February 2004, he underwent another VA examination of his feet.  Following review of the claims file and interview with the Veteran, the examiner recounted a detailed history of his pes planus.  Physical examination revealed no evidence of significant pes planus.  His plantar arches were fairly well-preserved.  Palpation of the plantar aspect of his feet elicited no discomfort.  A more comprehensive examination of his feet by podiatry clinic was planned.  March 2004 podiatry clinic notes document the results of that examination.  Again, a detailed history of his foot disabilities was provided.  Radiology studies found his feet to be within normal limits.  The examiner diagnosed mild pes planus on the left and moderate pes planus on the right.


II.B.  Pes Planus -Analysis

A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service sound condition except for defects noted when examined and accepted for service.  38 U.S.C.A. § 1111.  As to disorders noted at entrance into service, the law for determining if VA disability compensation benefits are warranted is 38 U.S.C.A. § 1153, as implemented by 38 C.F.R. § 3.306.  Only conditions noted on examination reports at entrance into service are said to have been noted at entrance into service.  38 C.F.R. § 3.306.  The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has provided a succinct explanation of the law in such instances, as follows:  

[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.  In that case section 1153 applies and the burden falls on the veteran to establish aggravation.  If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease.

Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (internal citations omitted).  

In the case before the Board, pes planus was noted on the December 1975 entrance examination report, and therefore the presumption that he was in sound condition at entrance into service did not attach as to the pes planus.  In the March 2010 decision, the Board found that pes planus preexisted his entrance into service and the Veterans Court, in the March 2012 decision, determined the finding to not be clearly erroneous.  Hence, that determination is now the law of the case and no longer at issue.  See Browder v. Brown, 5 Vet. App. 268, 270 (1993) (stating "[u]nder the 'law of the case,' questions settled on a former appeal of the same case are not longer open for review").  

The next inquiry, then, is whether the presumption of aggravation attaches.  As dictated by statute and regulation and explained in case law, that presumption attaches only once it is shown that the condition permanently increased in severity during service.  

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153.  Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b).  A preexisting injury or disease is said to have been aggravated during active service if it underwent a permanent increase in disability beyond the natural progress of the disease or injury.  Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010).  The burden of proof lies with the claimant to show that the disability increased in severity during service.  Id. at 174.  Only then is the presumption of aggravation triggered, shifting the burden to the government; such burden to be met by a showing of clear and unmistakable evidence that the increase was not beyond its natural progression.  Id.  

Here, the preponderance of evidence shows that the disability did increase in severity during service, and therefore, the presumption of aggravation attached.  When the Veteran entered active service the only relevant notations were that his pes planus was of one degree and not considered disabling.  The Board views these notations as indicating that his pes planus was very mild at that time.  His reports between January 31, 1978 and February 7, 1978 show that he had symptoms of his pes planus well after entrance into service.  This is evidence favorable to a finding that his pes planus increased in severity during service because there were no earlier reports of symptoms from the time he entered into service in 1975 to January 1978.  

The reports from May through August 1978 were principally for his cold injuries, but his pes planus was noted, although only tangentially as an observation.  These service treatment entries are not particularly favorable to his claim.  The recommendation in August 1978 to wear arch supports, the negative x-ray findings at that time, and the statement that no follow up was necessary, on balance, are mixed.  The recommendation to wear arch supports is favorable to his claim because it tends to show that he had symptoms of pes planus.  The negative x-ray findings and statement that a follow up was not necessary tend to show that his pes planus was not particularly disabling.  One fact weighing against his claim is he had only one temporary limitation of duty due to his pes planus, tending to show that there was no permanent worsening.  A fact favorable to his claim is his report that he noticed a permanent worsening of his pes planus during service.  The Veteran is competent to report that he had more than merely transitory severe symptoms of his pes planus, which is essentially what he has reported.  That he was described as having moderate pes planus in August 1978 is a fact favorable to his claim as it tends to show that his pes planus was worse at that time than the 1 degree of pes planus not considered disabling at entrance into service.  

The reports at separation from service are also both favorable and unfavorable to his claim.  They are favorable in that it was noted that he was treated for pes planus during service.  They are unfavorable in that there are no findings of pes planus on the separation report of medical examination.  

Adding complexity to this case are the post-service records documenting that different practitioners have used different language in describing his pes planus, sometimes within a short period of time between the descriptions.  Hence, those reports are not particularly favorable or unfavorable to a finding of a permanent increase in severity during service.  

After considering all of the relevant evidence in this case, the Board is left with reasonable doubt as to whether his pes planus permanently increased in severity during service.  As required by law, the Board resolves this reasonable doubt in the Veteran's favor and finds that his bilateral pes planus permanently increased in severity during his active service.  It is therefore presumed that his bilateral pes planus was aggravated by his active service.  

That presumption of aggravation can only be rebutted by clear and unmistakable evidence that the increase in severity was due to the natural progress of the condition.  38 C.F.R. § 3.306(b).  The clear and unmistakable evidentiary standard has been described as an onerous one.  See Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Atkins v. Derwinski, 1 Vet. App. 228, 232 (1991)).  There is no clear and unmistakable evidence of record demonstrating that the increase in severity during service was due to the natural progress of his bilateral pes planus.  Any evidence contemporaneous to the present time could not, in the Board's judgment, rise to that standard given the long passage of time since the Veteran's active service.  

For these reasons, the Board finds that the appeal as to this issue must be granted.  Service aggravation of the Veteran's bilateral pes planus is warranted.  


II.C.  Lumbar and Cervical Spine Claims - Facts

The Veteran contends that he has lumbar and cervical spine disorders that are either directly due to his active service or are secondary to his pes planus.  He contends that he injured his back and neck in a fall from a helicopter during service and his in-service complaints of hemorrhoids, groin pain, and testicle pain involve reports of that injury.  

Service treatment records contain entries for treatment or examination from June 1976 until the time of separation from active service in May 1980.  These records are detailed but do not document injuries of or treatment for his back or neck.  

In June 1977 he reported ache in his right hand, mostly during cold or damp weather, he also complained of having hemorrhoids.  He was assessed with external hemorrhoids.  There is no mention of his back.  The only mention of any injury in the June 1977 notes was that he had a sprain of his right wrist; noted with regard to his complaint of right hand ache.  In October 1977, he reported pain in his right hand and back during cold weather.  The October 1977 medical professional found no apparent swelling or abnormality and referred him for further evaluation for possible arthritis.  In October 1977, the referred physician clarified that the Veteran had possible arthritis of the hand.  He was treated with aspirin.  There is no further mention of his back in those notes and no further mention of musculoskeletal or neurologic back symptoms in any other service treatment note.  

In March 1978 he complained of black sputum.  The medical professional examined the lymph nodes of his neck, rendered an impression of bronchitis, and treated him with tetracycline.  An August 1978 note documents that the Veteran had been treated for possible venereal disease.  September 1978 notes document his report of a genito-urinary symptoms including dysuria, "drip," and testicle pain of two days duration.  The medical professional assessed epididymitis.  A day later the pain had resolved, assessment was prostatitis and rule out urinary tract infection, and he was treated with tetracycline.  In January 1979 he reported itching of his upper back of three weeks duration; assessment was dry skin syndrome.  

The May 1980 report of medical examination for separation from active service includes that he had a normal clinical evaluation of his spine and muculoskeletal system.  In the associated report of medical history, the Veteran indicated that he did not then have nor had he ever had recurrent back pain, arthritis, rheumatism, bursitis, or swollen or painful joints.  He indicated that he either then had or had previously had broken bones, and in another section of the report he stated that he had a broken wrist six years earlier and that he frostbite between 1976 and 1979.  In that report, a physician noted that he had been treated for frostbite and fallen arches, had hemophysis with no sequelae, a fracture of the left wrist, and that a family member had suffered from tuberculosis.  

The record is silent for almost a decade following the Veteran's discharge from service in regards to complaints regarding his neck or back.  Submitted by the Veteran are records of treatment at the Chiropractic Life Center between September 1989 and February 1990.  There is no explanation of any injury or duration of symptoms or any narrative of the treatment.  There are check marks in preformatted entries for cervical and lumbar problems.  

Next, are numerous treatment records from the 1990s documenting treatment at a number of hospitals and physicians, including Shallowford Community Hospital, Piedmont Hospital, Kennestone Hospital, and Kennesaw Family Physicians.  These document treatment for cervical spine symptoms resulting from an October 1990 automobile accident.  None of these records mention an injury prior to 1990.  

In June 1991 Shallowford Community Hospital records, Dr. "M.H.," documented the Veteran's report of the October 1990 accident and complaints of neck pain radiating to the left upper extremity and low back pain radiating into the left hip.  Dr. M.H. diagnosed cervical radiculopathy secondary to a herniated disc and low back pain with lumbar radiculopathy.  In an August 1991 report of history and physical examination, Dr. "B.A.L." documented the Veteran's report of persistent neck pain with numbness and tingling since an October 1990 automobile accident and the Veteran's report that he had never had a previous similar problem.  Dr. B.A.L. diagnosed a herniated cervical disc and cervical spondylosis.  

In 1995 the Veteran began reporting more low back symptoms.  For example, a May 1995 Kennestone Hospital emergency room report documents that he sought treatment for sudden onset of right low back pain.  He reported that he had not sustained any particular injury.  May 1995 notes from Kennesaw Family Physicians refer to that emergency room visit, document that the Veteran denied any previous injuries, and note a negative workup for kidney stones.  September 1995 notes from that provider document his report of lumbosacral pain intermittent for two days and that he had no prior history of any injuries.  

In 1996 the Veteran requested a copy of his service treatment records from VA.  In February 1998, VA received the Veteran's claim of entitlement to service connection for neck and back injuries.  In a letter to his representative that same month, the Veteran explained that his claims involved military and non-military injuries.  He contended that he injured his neck and back during service and those injuries were worsened due to an automobile accident in 1991.  He reported that information regarding those injuries was missing from his service treatment records and that he had been told during service that his treatment records were lost.  He also asserted that his in-service injuries were "grossly increased due to an auto accident (1991)."  

In September 1998, VA provided the Veteran with a general medical examination through QTC Medical Services.  During that examination, the Veteran reported that his general conditions were good when he sustained a back injury in service.  The Veteran stated that he went to a physician at the Army base and found that his injury required back surgery, but that he thought it was too dangerous and did not want surgery at that time.  He also reported that he had been in a 1990 car accident, which caused pain and tenderness of the back and injured his cervical spine.  The examiner diagnosed a contusion of the lumbosacral spine, with secondary osteoarthritis; trauma cervical with status post anterior cervical fusion and secondary osteoarthritis; strain left shoulder joint with possible changes of osteoarthritis.  

March 2000 Piedmont Hospital treatment notes document the Veteran's report that he originally injured his neck in a July 1977 fall from a helicopter and that his pain began gradually and had since become constant.  That is the earliest report of a fall from a helicopter.  

In June 2002 argument, the Veteran reported that he injured his neck and back on or about June 1977 in a fall from a helicopter that occurred after being accidently struck in the back of the neck.  He reported that there was no medical assistance available at the time.  He contended that his service treatment records were destroyed in a fire in Germany and speculated that his records may have been destroyed in the 1973 fire at the National Personnel Records Center.
 
In a July 2002 writing, the Veteran's wife stated that in the approximately 18 years she had known the Veteran, he had had trouble with his neck, shoulder, and back, as well as pain that primarily centered on the left side of his head.  

During the June 2003 Board hearing, the Veteran testified that he injured his back when he was knocked from a helicopter that was hovering over the ground.  He testified that there were no medical personnel available and he did not see a physician at the time.  When asked if he ever received treatment for such injuries, he referred to a strain, testified that he had reported back problems but the medical personnel wrote his complaints up as complaints regarding blockage, and groin and testicle problems, but did not go the other step of saying that these were due to his back.  He also testified that through his discussions with private doctors he has come to the understanding that his pes planus, back, groin, and testicle problems are all interrelated.  When asked if he had received immediate treatment for his alleged back injuries, he testified as follows:  "I did get treatment, but that treatment was basically for groin problems, 'cause what happened is, um, because of the strain and everything."  June 2003 transcript at 20.  

A November 2005 VA mental health intake note includes that the Veteran reported that he had a spinal injury from jumping from a helicopter in service and that the military covered up his injury by giving him an honorable discharge instead of a medical discharge.  An August 2008 VA emergency room clinic note indicated that the Veteran reported a long history of a cervical injury from a helicopter accident 30 year earlier and that he has had his present shoulder pain for years.  A September 2006 VA outpatient treatment record noted that the Veteran was involved in a car accident in June 2006 and found him to have mechanical/axial neck and low back pain.

In his November 2008 Board hearing testimony, he reiterated that he had injured his back and neck in a fall from a helicopter.  During that hearing he reported that he went to the medic and complained of his neck and back.  He testified that x-rays were not taken but that "[t]hey gave me morphine and things like that because I had a combination of injuries at that time.  I had foot injuries, pes planus.  I had frostbite injuries.  So I had a bunch of issues going on.  But they just gave me morphine."  November 2008 transcript at 7.  When asked if he continued to seek treatment during service, he testified that he went back and forth on several occasions during service.  He also testified that in 1980 he sought treatment at a VA Hospital for the injuries.  


II.D.  Lumbar and Cervical Spine - Analysis

When addressing a claim on the merits, the Board has an obligation to evaluate the credibility of evidence and to assign probative weight to competent evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence").  

As the Board has determined that service connection for pes planus is not warranted, there is no need to discuss whether his cervical or lumbar spine conditions are caused or aggravated by his pes planus.  Even if the conditions are caused or aggravated by his pes planus, such facts would not warrant a grant of service connection for lumbar or cervical spine disorders as pes planus is not a service-connected disorder and such causation or aggravation does not provide a basis for directly or secondarily connecting the spine disorders to service.  

There is no evidence documenting arthritis of his lumbar or cervical spine within one year of separation from active service.  Hence, the presumptive provisions for chronic diseases are not for application.  

Here, the Board concludes that the Veteran suffered no injury of his low back or cervical spine during his active service and therefore service connection cannot be granted based on an in-service injury.  In making this determination, the Board finds that the Veteran's statements of an in-service injury are not credible.  

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (explaining that competency has to do with whether the evidence may be considered by the trier of fact); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

As to some of the factors that go into making credibility determinations both the Veterans Court and the Federal Circuit have provided guidance.  See Buchanan v. Nicholson, 451 F3.d 1331, 1336-37 (Fed. Cir. 2006) (stating that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc"); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (stating that "[t]he credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.").  

Acknowledged by the Board is that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  "While the lack of contemporaneous medical records may be a fact that the Board may consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible."  
Id. at 1336.  

The Board has considered the Veteran's reports that he was told during service that his records were destroyed, his assertion that they were destroyed in a fire in Germany, and his speculation that perhaps they were destroyed at the 1973 fire at the NPRC.  His service treatment records are associated with the claims file and they detailed and appear complete.  This leads to a reasonable conclusion that his reports of lost or destroyed records are unfounded.  The records show treatment for a number of symptoms during his active service.  It is highly unlikely that those records would have remained in existence but only records of reports of back and neck injuries would have been lost or destroyed.  This is particularly the case given that there are reports of the conditions, hemorrhoids, groin problems, and testicle problems, that he contends actually involved report of back or neck injuries.  It is highly unlikely that treatment for those conditions would have been documented with no mention of back or neck injuries or symptoms of such injuries if such injuries had occurred or such symptoms were present.  It is also highly unlikely that the medical professionals would never mention his back or neck but rather refer to epididymitis and prostatitis.  What is more likely is that the detailed service treatment records accurately reflect all significant in-service injuries and symptoms.  His report of military efforts to cover up the injuries to avoid a medical discharge is without merit under the facts of this case.  

Furthermore, the Veteran's reports of treatment for his back and cervical spine during service are inconsistent.  In this regard, he reported in 1998 that the service treatment records regarding his neck and back injuries had been lost or destroyed, he reported in June 2002 that there were no medical personnel available to treat him when the injury occurred, he reported in 2003 that he was treated for his back in that he was treated for groin, hemorrhoid and testicle problems, and then in November 2008 he testified that he was treated numerous times for the injuries, including with morphine for pain.  Thus, he has asserted that he was and was not treated for the reported injuries and has provided a number of varying explanations for why there is no record of such treatment.  These inconsistent statements tend to show that the Veteran's reports of an injury of his back and neck incurred in a fall from a helicopter are not credible.  

Additionally, the Board finds it highly unlikely that service medical personnel would have recorded such treatment as to use arch supports for fallen arches, aspirin for hand pain, and tetracycline for bronchitis and prostatitis, but never have recorded administration of narcotics for a traumatic neck and lower back injury.  

As to his reports that treatment for hemorrhoids, symptoms involving his groin, and testicle problems were actually reports of back pain, the Board finds his reports not credible.  There are records of the treatment for hemorrhoids, groin, and testicle complaints.  Those records do not mention his back.  It is unlikely that the records would only have recorded his reports of symptoms involving his groin, testicles, and hemorrhoids but omitted a report of back problems.  

The service treatment records do not indicate either a helicopter accident or any kind of back or neck disorder upon separation from active service.  Additionally, the service treatment records include one report of back pain (along with right hand pain), which was followed up by medical providers who referred in the follow up only to the right hand pain, leading the Board to the conclusion that his reported back pain during cold weather was not reasserted or of significance.  Otherwise it would follow that there would have been annotations regarding his back in the follow up report as there were annotations regarding his right hand.  Subsequent service treatment records did not indicate any complaints of or treatment for back pain.  Furthermore, the March 1978 service treatment record that the Veteran claimed indicated treatment for his neck, indicates an inspection of his lymph nodes related to bronchitis, not treatment of his cervical spine or treatment provided with regard to any trauma.  

Additionally, the report of medical examination and medical history at separation from active service make no mention of a lower back or neck injury or of a fall from a helicopter.  Those reports refer to frostbite, fallen arches, and a broken wrist.  In light of those notations, the Board finds that an event as traumatic as a fall from a helicopter requiring treatment with morphine would have been noted in at least one of those reports if it had indeed occurred.  

The contemporaneous nature of the service treatment records as opposed to his current statements, and the fact that the service treatment records were made pursuant to his seeking medical treatment as opposed to the reports made in the context of seeking monetary compensation, are factors that add to the probative value of the service treatment records and subtract from the probative value of his later statements.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons").  As to the cite to Rucker, the Federal Rules of Evidence at 803(4) exclude from the hearsay rule statements made in the course of seeking medical diagnosis or treatment based on an underlying reasoning that such statements are particularly trustworthy because the individual has a compelling interest in providing truthful statements.  The Board finds that underlying reasoning applicable to this case.  

Furthermore, during his September 1998 VA examination, the Veteran reported that he was told by a physician at the Army base that he required surgery for his back, but that he believed it was too dangerous and did not want surgery at that time.  It is unlikely that the May 1980 medical examiner would have found the Veteran's spine to be normal, if it was in fact so severely injured that it required surgery, as asserted by the Veteran.  Additionally, the Board finds it unlikely that the Veteran would have reported that he did not have any problems with his back prior to separation, if he had such serious back problems that he had previously been informed of the need for back surgery.

Indeed, the Board notes that the Veteran filed for VA benefits in July 1980, shortly after his discharge from service, but did not make a claim regarding his alleged chronic back pain since service at that time.  The record thus indicates that the Veteran knew that VA benefits were available for in-service injuries, but did not consider his back to have been so injured as to warrant compensation.  His reports of treatment at a VA Hospital in 1980 for back and or neck symptoms have been considered but, although the RO attempted to obtain any records of such treatment, the identified facility reported that the Veteran had not received treatment there.  The Board finds more probative the VAMC's report than the Veteran's report as it can discern no reason that there would not be at least a record of treatment at the facility if he had indeed received any treatment.  Again, if he did receive treatment for his back and/or neck in 1980, it does not follow that he would have filed a claim of entitlement to service connection for cold injuries but not filed a claim of entitlement to service connection for back and/or neck injuries.  

Although the Veteran was treated by a chiropractor in 1989, the record was silent for any complaints of back pain following his service until then, at which time the record indicates that the Veteran was treated for a few months for back pain.  Those records do not document any longstanding symptoms or any particular injury and are not probative of the occurrence of an in-service injury.  

Additionally, the occurrence of an in-service injury of his neck and back is inconsistent with the treatment notes from numerous hospitals and practitioners in the early and mid 1990s.  There he reported no symptoms similar to those he had when he was injured in the automobile accident.  He also reported no prior injuries, for example, when he sought treatment at the emergency room in May 1995 and as noted in the September 1995 Kennesaw Family Physicians notes.  He only began to refer to the helicopter incident after he filed his claim of entitlement to service connection for lumbar spine and cervical spine disabilities.  If he had a prior injury of either his lower back or neck during service, it is highly unlikely that he would not have reported it and it would not have been recorded by any of the providers of treatment for his cervical spine in the 1990s.  

For these reasons, the Board finds that the Veteran's assertions of an in-service back and/or neck injury are not credible.  His statements are therefore afforded only the most minimum of probative weight.  The Board also affords only minimal weight to the July 2002 statement of the Veteran's spouse that she has known him to have neck and back pain for the approximately 18 years she has known him.  Her statement is subject to bias due to their relationship and to a certain extent, due to that relationship she has a monetary interest in the outcome of his claim and appeal.  Even if her statement is accurate, it does not place onset of his pain in active service and it is not evidence of the occurrence of any injury during service.  

The Board also finds that no medical evidence of record supports the Veteran's contentions that his current back disorders are due to service.  Although the Veteran has frequently reported to his medical providers that his current back disorders are due to an in-service helicopter incident, none of his medical providers have actually opined as to the etiology of the cervical and lumbar spine disorders.  While medical evidence reflects lumbar and cervical spine disorders, none of those records relate the spine disorders to any incident in service.  Morton v. Principi, 3 Vet. App. 508, 509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992).  (Observing that evidence of the appellant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). 

The only other evidence provided as to the Veteran's claim is his belief that his cervical and lumbar spine disorders developed due to his claimed in-service injury.  As the Board finds that he had no in-service injury of his back, his reports linking his current back and neck conditions to such injury are not probative.  

As noted above, the Veteran was advised of the need to submit medical evidence demonstrating both current disorders, as well as medical evidence demonstrating a nexus between the claimed current disorders and service by way of the VCAA letter provided to him, but failed to do so.  A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a).  

Based on the above, the Board finds that the preponderance of the evidence is against the claims.  Therefore, the appeal as to entitlement to service connection for lumbar and cervical spine disorders must be denied.  There is no reasonable doubt to be resolved as to these issues.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


III.  Disability Ratings - Cold Injury Residuals

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  


III.A  Disability Ratings - Cold Injuries - Facts

Service treatment records document treatment for cold injuries beginning in May 1977.  He had pain, loss of the right great toenail, and reports of swollen feet and was eventually placed on physical profile due to cold injury of his feet.  He was separated from active duty four years after the date of his enlistment due to his completion of required duty.  

October 1996 records of treatment by Kennesaw Family Physicians are the earliest post service records of treatment of his feet for any condition.  That treatment was for plantar fasciitis.  The only mention of cold injuries was that he had a questionable history of frostbite and some circulation problems.  Following examination the medical professional stated that there was "no evidence of any injuries noted."  In July 1998, Dr. F.P., a podiatrist, treated him for plantar fasciitis with strappings, icing, and arch supports.  Dr. F.P. documented findings of normal skin color, temperature, and texture; and x-rays of his feet were normal other than medial column collapse.  

VA afforded the Veteran an examination in October 2000 with regard to his cold injuries.  The examiner recorded the Veteran's report that he was undergoing exercises to improve his circulation; had not had any amputation or tissue loss, but that the injured part was sensitive to cold.  He reported numbness and burning sensation in his toes, pain with cold exposure, occasional disturbances of nail growth, and that the injured parts had profuse sweating, abnormal sensation, recurrent fungal infection, and color changes.  

Upon examination, the examiner noted cold injury of both feet.  Color, temperature, hair growth, and skin texture were normal.  He had no atrophy, ulceration, edema, inflammation, loss of tissue of the digits, or missing nails, and there was no evidence fungal infection.  The examiner stated that there was no evidence of Raynaud's syndrome and that the Veteran did not have Raynaud's syndrome.  Vascular examination was normal with no evidence of vascular insufficiency.  The examiner noted that the Veteran had dry looking skin on both feet, that he initially had lost toenails and reported that he had shed a lot of skin and that he still had pain in his feet in cold weather.  The examiner found the effect of the condition of the Veteran's daily activity to be minimal so long as he stayed out of cold weather, but explained that cold exposure would cause foot numbness, pain, tingling, and a heat-like sensation.  

VA again afforded him an examination of his feet in February 2004.  The examiner noted that the Veteran had perennial problems with his feet, initially attributed to exposure to cold, but subsequently the condition also troubled him in the summer, such that it was probably a peripheral neuropathy from the initial injury.  The Veteran reported pain bilaterally at the great toes and at the distal end of the feet.  He reported having some swelling of the feet at times and occasional heat or cold sensation and numbness.  He also reported that he had profuse sweating of the affected parts, abnormal sensation, a recurrent fungal infection, and occasional disturbances of nail growth.  The examiner included a quoted passage in the report, as follows:

The last time a nail came off was in 2001 and 2002, and it was on the right big toe.  It came back.  Sometimes parts of the feet turn a yellow color on the front part and a gray color in the middle part of the heel.  I have special arch supports, but I do not wear them because they are painful to wear.  I have no tissue loss.  I think my feet are hypersensitive at times and sometimes they are numb and tingling.  I am hypersensitive to cold and warm weather.  In the summertime my feet feel overheated, but they are cold to touch.  I am always having some problems with my feet, but the degree of pain varies and sometimes the pain is severe and I have to go to the doctor.  

Physical examination revealed no nail changes and no color changes.  His feet were cool to the touch; there was some loss of the cutaneous appendages of both feet, this in reference to hair growth on the dorsal aspect of the feet.  The examiner explained that the Veteran presented with a history of foot pain, episodes of numbness and tingling suggestive of a neuropathy.  The examiner found it at least as likely as not that the sensory neuropathy of the feet was secondary to the in-service cold injury.  

In March 2004, VA provided an examination in the podiatry clinic.  The Veteran reported that he had pain, numbness and tingling in both big toes, dullness in both heels, a sharp feeling in the middle portion of both feet, and scars over the great toes.  He reported a sensation of sweating but denied excessive sweating.  He reported hard skin and yellow discoloration under both feet.  He also reported that the left big toenail came off in November or December of 2000 and the right toenail in January or February of 2001.  He reported increased pain with prolonged walking or standing.

The examiner reported that there were no neurological findings that indicated numbness, cold sensitivity, locally impaired sensation or hyperhidrosis regarding the Veteran's in-service cold injury.  Additionally, the examiner found that current x-ray and MRI findings did not indicate any residual abnormalities in respect to the Veteran's in-service cold injury.  The examiner found that his bilateral hallux, onychomycosis and hypopigmentation were at least as likely as not related to the in-service cold injury.  Also noted was that the Veteran did not indicate a circulatory disorder, with the exception of hair loss below the ankles; however, the examiner found no notes within the claims file to mention such a finding and that the examiner would not expect this to occur approximately 29 years after the initial cold injury.


III. B  Disability Ratings - Cold Injuries - Analysis

Here, the Veteran appealed the decision in which service connection was granted.  Since that time, the ratings have been staged, i.e., separate ratings have been assigned for separate periods on appeal.  Specifically, 10 percent ratings are currently in place for the period prior to March 6, 2004 and 30 percent ratings are in place for the period beginning on March 6, 2004.  

Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); See Hart v. Mansfield, 21 Vet. App. 505 (2007).  The distinction being that for an increased rating claim "the relevant temporal focus in on the evidence concerning the state of disability from the time period one year prior to when the claim is filed" as opposed to an initial rating where "VA must consider the severity of disability for which the veteran is eligible for service connection starting on date application was filed."  See Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007) to explain the applicable focus for an initial disability rating).  

The instant appeal is from an initial rating assignment; there is no increased rating claim.  This is significant in that the Board cannot grant a rating for the period prior to March 6, 1998 because that is the effective date of service connection.  It is recognized that the Board is remanding the issue of entitlement to an effective date earlier than March 6, 1998 for award of service connection for residuals of cold injuries.  That period of time is not the subject of this adjudication.  

Prior to the initiation of the appeal, amendments were made to the rating criteria used to evaluate cold injury residuals (formerly "frozen feet, residuals of (immersion foot)") and that new rating criteria took effect January 12, 1998.  As such, the pre-January 1998 criteria are not applicable to the present claim.  The latest rating criteria took effect August 13, 1998, after the Veteran filed his current claim; however, the rating criteria that took effect in August 1998 are the same in substance as the amended criteria that became effective in January 1998.  The August 1998 criteria simply clarifies that other disabilities, such as Raynaud's phenomenon, should be separately evaluated, unless used to support an evaluation under Diagnostic Code 7122 (August 1998).

Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25.  However, the evaluation of same disability or the same manifestation under various diagnoses, a practice known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2012).  In determining if separate ratings may be assigned for different service-connected conditions "[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  If the symptoms are "distinct and separate" then the individual is entitled to separate disability ratings for the various conditions.  Id.  

Section 4.104 of Title 38 of the C.F.R. provides ratings for disabilities of the cardiovascular system.  Listed under that section are Diagnostic Code 7122, for residuals of cold injury, and Diagnostic Code 7117, for Raynaud's syndrome.  

Cold injury residuals of arthralgia or other pain, numbness, or cold sensitivity are rated 10 percent disabling.  38 C.F.R. § 4.104, Diagnostic Code 7122.  Cold injury residuals of 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), are rated 20 percent disabling.  Id.  Cold injury residuals of 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), are rated 30 percent disabling.  Id.  

Amputations of fingers or toes are to be rated separately, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy are to be rated under other diagnostic codes.  Id. at Note (1).  Other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., are to be rated separately, unless they are used to support a rating under Diagnostic Code 7122.  Each affected part (e.g., hand, foot, ear, nose) is to be rated separately and the ratings are to be combined in accordance with 38 C.F.R. §§ 4.25 and 4.26.  38 C.F.R. § 4.104.  Id. at Note (2).  

Ratings for Raynaud's syndrome depend on characteristic attacks consisting 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.  38 C.F.R. § 4.104, Diagnostic Code 7117.  Where there has been no autoamputation of one or more digits, those ratings range from 10 to 60 percent but require at least daily attacks for a rating higher than 20 percent.  Id.  Those ratings are for the disease as a whole, regardless of the number of extremities involved.  Id.  

In the present case, the symptoms of the Veteran's claimed Raynaud's syndrome would be characterized under color changes with pain for rating under Diagnostic Code 7122.  It would therefore be pyramiding to assign ratings under Diagnostic Code 7117 in addition to ratings assigned under Diagnostic Code 7122.  Moreover, higher combined ratings are available, and are assigned pursuant to this decision, under Diagnostic Code 7122 than are available under Diagnostic Code 7117.  Therefore, a separate rating for Raynaud's syndrome is prohibited.  

The probative evidence prior to March 6, 2004 consisted of the October 2000 examination report, and to a certain extent the July 1998 treatment notes from Dr. F.P.  The service treatment records and notes from Kennesaw Family Physicians are from too long prior to March 6, 1998 to be of significance in determining the degree of his disability over the period beginning on that date.  

During the October 2000 examination, the Veteran reported that he had profuse sweating, abnormal sensation, numbness, occasional disturbances of nail growth, and pain.  Although the examiner found no missing nails, the examiner did not make any findings as to abnormal sensation or whether or not he had hyperhydrosis at the time of the examination.  Significantly, he reported that he has flare-ups depending on if the weather is cold.  Those reports of occasional disturbance of nail growth are consistent with his report during the 2004 examination of losing toenails of the great toes in 2000 and 2001, as are the two reports of profuse sweating.  He clearly had abnormal sensation on examination in 2004.  From this evidence, it appears to the Board that he had not only pain, numbness and cold sensitivity as of October 2000 but also hyperhydrosis, nail abnormalities and locally impaired sensation at that time, warranting a 30 percent rating.  

Next the Board turns to the period prior to October 2000.  Although the Veteran was seeking treatment from Dr. F.P. for plantar fasciitis, she did examine his feet on more than one occasion yet all of her comments were of normal feet other than the plantar fasciitis.  Indeed, she noted that the Veteran was treated with strappings and icing of his feet.  If his cold injury residuals were present at that time, the Board would expect to find some statement to that effect in Dr. F.P.'s treatment notes.  However, given that he has explained that he has flare-ups of his cold injury residuals depending on the climate, the absence of findings by Dr. F.P. during the short period she treated him in July is not particularly probative of an absence of symptoms in general.  

Furthermore, the general statutory provision for establishing an effective date for an award of compensation provides that such date shall be fixed in accordance with the facts found, but shall not be earlier than the date of application thereof.  38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012).  Similarly, the general portion of the implementing regulation provides that the effective date of an evaluation based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400 (2012).  The Veterans Court has interpreted those provisions as, in general, allowing for an effective date later than the date of application in instances where the claimant did not have the disability at the time he or she filed the claim or the benefits sought were not authorized by law until some time after he or she filed the claim.  See DeLisio v. Shinseki, 25 Vet. App. 45, 51-52 (2011).  

Here, the Board finds no reason to not apply the general analysis in DeLisio to the facts of this case.  There is no evidence showing that the Veteran did not have hyperhydrosis, intermittent nail abnormalities, and impaired local sensation prior to when those conditions were found on or about the time of the October 2000 examination.  October 2000 is merely the date VA afforded him the relevant examination, not necessarily the date that his symptoms first appeared.  Taking into consideration his reports of seasonal flare-ups and resolving reasonable doubt in his favor, as is required by law, the Board concludes that a 30 percent rating for residuals of cold injuries of each foot is warranted from the date of claim, March 6, 1998.  

Also considered by the Board is whether referral is warranted for a rating outside of the schedule.  To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment.  38 C.F.R. § 3.321(b)(1) (2012).  The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards.  38 C.F.R. § 3.321(b).  

Extraschedular consideration involves a three step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology.  Id. at 115.  If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.  Id.

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 116.  If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

Here, the schedular criteria contemplate both the symptomatology related to the Veteran's residuals of cold injuries and the severity of disability due to the cold injuries.  He has color changes, infrequent nail loss, pain depending on the climate, excessive sweating, and numbness.  Those symptoms are all addressed in the schedular criteria.  The rating accounts for abnormalities that the Veteran does not have - such as x-ray evidence of subarticular punched out lesions, tending to show that the schedular criteria provides the same rating for manifestations more severe than what the Veteran has.  The first prong of Thun is therefore not met here and no further analysis is necessary.  As the first step in the Thun analysis is not favorable to the Veteran, the Board declines to remand this issue for referral for extraschedular consideration.  

I summary, the Board finds the evidence to be in equipoise as to whether a 30 percent rating is warranted for the period beginning on March 6, 1998 and therefore grants that rating to that date.  The Board also finds that the preponderance of evidence is against remanding this time period for referral for extraschedular consideration.  There is no reasonable doubt to be resolved as to the extraschedular question.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

This determination resolves the appeal as to the issues of initial evaluations higher than 10 percent and as to the March 6, 2004 effective date of the 30 percent ratings, as those issues were identified by the Veterans Court.  


ORDER

Service aggravation of bilateral pes planus is granted.  

Service connection for a lumbar spine disorder is denied.  

Service connection for a cervical spine disorder is denied.  

Entitlement to a 30 percent rating for residuals of cold injury to the right foot is granted for the period from March 6, 1998 to March 6, 2004; subject to the laws and regulations governing the payment of monetary benefits.  

Entitlement to a 30 percent rating for residuals of cold injury to the left foot is granted for the period from March 6, 1998 to March 6, 2004, subject to the laws and regulations governing the payment of monetary benefits.  


REMAND

In the March 2010 decision, the Board referred to the RO the issues of entitlement to an effective date earlier than March 6, 1998 for award of service connection for residuals of cold injury with Raynaud's syndrome of each foot.  This was based on his April 1999 notice of disagreement with the date assigned for those disabilities.  Review of the claims file, including the electronic portion of the claims file, fails to reveal that the RO has issued a statement of the case (SOC) with regard to those issues.  

As VA has not yet provided the Veteran with SOC with regard to those issues, it would be premature for the Board to address the issues on the merits.  Hence, it must remand those issues so that the RO can provide the Veteran with an appropriate SOC.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  

Accordingly, the case is REMANDED for the following action:

Provide the Veteran with an SOC in response to his April 1999 notice of disagreement with the effective date assigned for award of service connection for residuals of cold injury of the right foot with Raynaud's syndrome and award of service connection for residuals of cold injury of the left foot with Raynaud's syndrome, as well as notice of his procedural and appellate rights in perfecting his appeal of those issues to the Board.  Return those matters to the Board only if he perfects his appeal.  

The Veteran has the right to submit additional evidence and argument on the matters 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 

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action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs