Citation Nr: 1306887	
Decision Date: 02/28/13    Archive Date: 03/01/13

DOCKET NO.  11-06 871	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for arthritis of the lumbosacral spine.  

2.  Entitlement to service connection for the residuals of a shell fragment wound (SFW) of the left side.  

3.  Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD).  

4.  Entitlement to service connection for bilateral knee disabilities.  

5.  Entitlement to an initial rating for residuals of frostbite of the left foot, rated 10 percent disabling from September 9, 2009, until August 15, 2010; 20 percent from August 16, 2010, until August 23, 2011; and 30 percent from August 24, 2011.  

6.  Entitlement to an initial rating for residuals of frostbite of the right foot, rated 10 percent disabling from September 9, 2009, until August 15, 2010; 20 percent from August 16, 2010, until August 23, 2011; and 30 percent from August 24, 2011.  

7.  Entitlement to a total rating by reason of individual unemployability due to service-connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARINGS ON APPEAL

Appellant (the Veteran) and J. S. 


ATTORNEY FOR THE BOARD

Joseph P. Gervasio, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1948 to April 1952.  

This case comes to the Board of Veterans' Appeals (Board) on appeal of August 2010 and February 2011 rating decisions of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA).  

In August 2012, a travel board hearing was held before the undersigned in Pittsburgh, Pennsylvania.  A transcript of the hearing is associated with the Veteran's claims file.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues of entitlement to service connection for bilateral knee disabilities; an acquired psychiatric disability, including PTSD; and TDIU 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.  VA will notify the appellant if additional action is required on his part.


FINDINGS OF FACT

1.  Degenerative arthritis of the lumbosacral spine is shown to have been related to complaints of low back pain in service.

2.  Residuals of SFW of the left side are not currently demonstrated.  

3.  From the effective date of the award of service connection, the residuals of cold injury of the right foot were a burning sensation of the feet, dependent edema, numbness and nail changes of the great.  

4.  From the effective date of the award of service connection, the residuals of cold injury of the left foot were a burning sensation of the feet, dependent edema, numbness and nail changes of the great toes.  

5.  On August 24, 2011, residuals of a cold injury of the Veteran right lower extremity were additionally manifested by hyperhidrosis and X-ray abnormalities.  

6.  On August 24, 2011, residuals of a cold injury of the Veteran left lower extremity were additionally manifested by hyperhidrosis and X-ray abnormalities.  

7.  On August 24, 2011, residuals of a cold injury of the right lower extremity included moderate peripheral neuropathy of the sural and peroneal nerves.  

8.  On August 24, 2011, residuals of a cold injury of the left lower extremity included moderate peripheral neuropathy of the sural and peroneal nerves.  


CONCLUSIONS OF LAW

1.  Degenerative arthritis of the low back was incurred in service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

2.  Service connection for residuals of a SFW of the left side is not warranted.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).

3.  The criteria for an initial rating of 20 percent for the residuals of frostbite of the right foot have been met from September 9, 2009 until August 23, 2011.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code (Code) 7122 (2012).  

4.  The criteria for an initial rating of 20 percent for the residuals of frostbite of the left foot have been met from September 9, 2009 until August 23, 2011.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Code 7122 (2012).  

5.  The criteria for a rating in excess of 30 percent for the residuals of frostbite of the right foot have not been met from August 24, 2011.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Code 7122 (2012).  

6. The criteria for a rating in excess of 30 percent for the residuals of frostbite of the left foot have not been met from August 24, 2011.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Code 7122 (2012).  

7.  The criteria for a separate rating of 10 percent for peripheral neuropathy of the right lower extremity have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Code 8522 (2012).  

8.  The criteria for a separate rating of 10 percent for peripheral neuropathy of the left lower extremity have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.124a, Code 8522 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of the claims.  October 2009 and November 2009 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing.  These letters also informed the Veteran of disability rating and effective date criteria.  

Regarding the rating claims before the Board, as the rating decision on appeal granted service connection for frostbite of the left and right feet and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess 19 Vet. App. at 490  A June 2011 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating, while an April 2012 supplemental SOC (SSOC) readjudicated the matter after the Veteran and his representative responded and further development was completed.  38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  The Veteran has had ample opportunity to respond and supplement the record.  

With regard to the duty to assist, the Veteran's service treatment records (STRs) have been certified as being unavailable and are presumed to have been lost.  Pertinent post-service treatment records have been secured to adjudicate the issues decided herein.  The Veteran has been afforded VA medical examinations in connection with the claims, most recently in August 2011.  38 C.F.R. § 3.159(c) (4) (2012).  The Board finds that the opinions obtained are adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records.  The examiner also provided a detailed rationale for the opinions rendered.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Neither the Veteran nor the Veteran's representative has challenged the adequacy of the examination obtained.  Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4) (2012).  

Service Connection Laws and Regulations

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as degenerative arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

In order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1990).   The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a).

The Board is required to render a finding with respect to the competency and credibility of the lay evidence of record.  See Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006).  Competent, credible lay evidence could be, in and of itself, sufficient to establish an elemental fact necessary to support a finding of service connection.  Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).  As a fact finder, the Board is obligated to determine whether lay evidence is credible in and of itself.  The Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, but it may consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (Fed. Cir. 2006).  Credibility is a factual determination going to the probative value of the evidence, to be made after the evidence has been admitted or deemed competent.  Cartwright v. Derwinski, 2 Vet. App. 24 (1991).  Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).

A veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived, that is, experienced, were directly through the senses.  38 C.F.R. § 3.159 (competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); Layno, 6 Vet. App. at 469-71 (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness, but lay testimony is not competent to prove a particular injury or illness); see Barr 21 Vet. App. at 303 (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F.3d at 1377.  Also, a veteran as a layperson is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau). 

VA must consider the competency of the lay evidence and cannot outright reject such evidence on the basis that such evidence can never establish a medical diagnosis or nexus; however, this does not mean that lay evidence is necessarily always sufficient to identify a medical diagnosis, but rather only that it is sufficient in those cases where the layman is competent and does not otherwise require specialized medical training and expertise to do so, i.e., the Board must determine whether the claimed disability is a type of disability for which a layperson is competent to provide etiology or nexus evidence.  See Davidson, 581 F.3d at 1316 (recognizing that, under 38 U.S.C.A. § 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition; the person is reporting a contemporaneous medical diagnosis; or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional).  

In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation.  See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996).  The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor.  See VAOPGCPREC 12-99.  The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder.  See Libertine, 9 Vet. App. at 522-23.  The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service.  Clyburn v. West, 12 Vet. App. 296, 303 (1999).  

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012).  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Service Connection for Degenerative Arthritis of the Lumbosacral Spine

The Veteran contends that service connection should be established for his low back disability, which has been diagnosed by VA as degenerative arthritis of the lumbosacral spine.  He asserts in correspondence and in testimony at his hearings on appeal, including testimony given before the undersigned at the Board hearing in August 2012, that he sustained an injury of his low back while in combat in Korea.  

As noted, the Veteran's STRs are not available and are presumed to have been lost.  The record includes a VA July 2010 compensation examination.  At that time, the Veteran reported that he had sustained a low back injury in service while driving a truck and being involved in a motor vehicle accident.  He stated that he hurt his back at that time, but was treated only with aspirin.  He stated that he had never sought medical treatment but that he had had low back pain since the injury in service.  He reported daily pain that was worse in the morning, but that he described as an ache.  X-ray studies of the thoracic spine showed general osseous demineralization and mid and lower thoracic spondylosis.  Studies of the lumbar spine showed degenerative disease with the left 4th facet joint, exaggerated lordosis, and minimal anterior spondylosis at L1-2.  The examiner stated that the Veteran's subjective report of pain since Korea would be at least as likely as not secondary to his injury in service.  

The Veteran's testimony is found to be consistent with the nature and circumstances of his service in combat in Korea.  He has testified that he had continuous symptoms of back pain since his service in Korea.  Although there is some inconsistency in that the Veteran submitted a claim for service connection for hearing loss and malaria in 1995, without mention of complaints of back pain, the record shows that he did not pursue that claim after finding that his STRs were not available.  As the Veteran's testimony of having sustained a back injury during service is consistent with his service, and there is a VA medical opinion in the record that links his current symptoms with that injury, the Board finds that the preponderance of the evidence supports the grant of service connection.  

Service Connection for the Residuals of SFW of the Left Side

The Veteran contends that he sustained SFW of the left side of his body when an enemy tank exploded near him.  He testified at his hearings that, following the injury he was treated with band aids.  As noted, the Veteran's STRs are not available for review.  

An examination was conducted by VA in July 2010.  At that time, the Veteran reported how he sustained the SFW in service, but reported that he could not point out any residuals of the wounds.  On examination, the Veteran pointed to where he recalled his entry wounds, but the examiner was not able to distinguish any scar tissue or other skin anomaly in the area.  The pertinent diagnosis was that there was no evidence of a shrapnel injury, including scarring or retained metallic fragments on radiographs.  

In the absence of proof of a current disability there is no valid claim of service-connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, service connection for residuals of SFW of the left side is not warranted.

Rating Residuals of Frostbite of Each Foot

Service connection for the residuals of frostbite of each foot was granted by the RO in a July 2011 rating decision.  The 10 percent initial disability ratings for each foot were awarded under the provisions of Code 7122 from the date of claim on September 9, 2009.  By rating decision dated in February 6, 2012, the evaluation for each of the Veteran's feet was increased to 20 percent, effective August 16, 2010, and to 30 percent, effective from August 24, 2011.  The Board will consider the entire period of initial rating claims from September 9, 2009 to see if the evidence warrants the assignment of different ratings for the different periods of time, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).

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. 38 U.S.C.A. § 1155.  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 (2012).  

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012).  

Diagnostic Code 7122 provides ratings for residuals of cold injury.  Cold injury residuals of arthralgia or other pain, numbness, or cold sensitivity are rated 10 percent disabling.  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.  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.  Note (1) to Diagnostic Code 7122 provides that 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.  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.  Note (2) to Diagnostic Code 7122 provides that 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.

Diagnostic Code 8522 provides ratings for paralysis of the musculocutaneous (superficial peroneal) nerve.  Diagnostic Code 8522 provides that mild incomplete paralysis is rated noncompensable (0 percent) disabling; moderate incomplete paralysis is rated 10 percent disabling; and severe incomplete paralysis is rated 20 percent disabling.  Complete paralysis of the musculocutaneous (superficial peroneal) nerve, eversion of foot weakened, is rated 30 percent disabling.  

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor.  38 C.F.R. § 4.124a.  

On examination by VA in July 2010, the Veteran reported current residuals of his frozen feet to be cold sensitization, where he felt that his feet had been cold since service.  He did not report any symptoms of Reynaud's disease, but stated that his feet were dark.  On examination, there was a blue-ish tint to the skin that was believed to be due to superficial varicosities and not an indication of cyanosis.  He denied any burning, numbness, tingling in the calves or cramping of the calves when he walked.  He denied issues with hyperhidrosis, but stated that he had had numbness and tingling since service and that this had become more noticeable in the past 10 or 12 years.  He complained of having a burning sensation of the feet when he tried to sleep.  He was not aware of any breakdown of his skin or ulcerations.  He pointed out some disturbance of the nail bed of the great toes.  He reported some dependent edema of both feet that resolved by the morning.  Examination of the feet showed them to be cool to the touch.  There were superficial varicosities, but no indication of cyanosis.  There was no frank change of color and the nail beds were intact and clear except for the great toenails that appeared mycotic.  Palpating the heels, insteps, and balls of the feet caused no pain.  Monofilament testing revealed sensation in both feet.  Sensation was intact to vibration as well.  There was no paralysis, neuritis, or neuralgia noted.  There was no muscle wasting or atrophy beyond what would be expected for the Veteran's age.  The diagnosis was cold injury of the feet.  

On initial examination following the Veteran's claim for service connection for residuals of frozen feet, the Veteran complained of cold sensitivity, as well as numbness and tingling.  He experienced a burning sensation of the feet.  The toenails appeared mycotic.  Monofilament testing revealed sensation in both feet.  These symptoms are found by the Board to be sufficient to more nearly approximate the criteria for a 20 percent rating for each lower extremity from the effective date of the award on September 9, 2009, as the Veteran has indicated his symptoms have been present for many years.

An examination was conducted by VA on August 24, 2011.  At that time, the Veteran complained that he had constant pain in the feet that was worse at night.  He also had numbness of the legs from the knees down and pins-and-needles sensation in the toes.  He felt weakness of the feet, swelling of the feet and sensitivity to cold.  He felt that his feet had excessive sweating, dermatophytosis of the toenails and was told that he had arthritis of the feet.  He had a complete loss of sensation in the feet.  He denied ulcers, breakdown of skin, change in thickness of the skin or skin cancer in the affected areas.  On complaints specific to the feet, the Veteran reported hyperhidrosis of the feet, constant tingling and numbness of both feet.  He was seen at the podiatry clinic for recurrent toenail fungus, and there was a disturbance of the nail growth in that the big toenails might fall off.  He had arthritis (confirmed by X-ray studies taken in connection with the examination) and joint stiffness of the feet.  His feet were "reddish" and had some edema in the feet that was minimal.  He reported that his legs felt like "ice" and that he woke every night.  His legs, from his knees to his toes, always felt cold, which was not related to the season.  He had a constant burning and aching pain in the plantar and dorsal aspects of the feet that he rated at level 9.  

On examination, the plantar aspect of the feet showed macerated skin with flaking scales along the lateral and medial aspects of the feet.  There was no hair growth on the feet or legs below the knees.  There was evidence of toenail fungus and flaky subungual debris below his bilateral great toes.  There was no evidence of ulceration and no scars evident.  Reflexes were hyporeflexic in the lower extremities.  Strength was 4/5 in the lower extremities.  Pinprick, vibration, and light touch sensations were absent in the lower extremities.  The pertinent diagnosis was cold injury of the bilateral lower extremities, including osseous demineralization of both feet, hyperhidrosis, skin maceration, and peripheral neuropathy involving the sural and peroneal nerves.  

The August 24, 2011, examination report first demonstrated symptoms of hyperhidrosis and X-ray abnormalities in both feet, which are symptoms upon which a 30 percent rating may be established for residuals of cold injury.  The Veteran first manifested these symptoms that may be found to more nearly approximate the criteria for the 30 percent rating as of that date.  

In addition, however, the examination report shows peripheral neuropathy of both sural and peroneal nerves, which may be separately rated.  The neuropathy is shown to be limited to lack of sensation only.  Under regulations, such disability is to be rated as moderate, at most.  Resolving all reasonable doubt in the Veteran's favour, the Board finds that a separate 10 percent rating should be awarded for each of his lower extremities under the provisions of Code 8522.  

Extraschedular Considerations

The Board also has considered whether referral for extraschedular consideration is warranted.  An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1) (2009); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating.  

In this case, comparing the Veteran's disability level and symptomatology to the rating schedule, the degree of disability throughout the appeal periods under consideration are contemplated by the rating schedule.  The Veteran's bilateral cold injury residuals directly correspond to the schedular criteria for the 20 and 30 percent evaluations that have been assigned.  In addition, the moderate peripheral neuropathy that was noted on the August 24, 2011, examination report is specifically contemplated in the schedular rating criteria, and is the basis for separate 10 percent schedular ratings for each lower extremity.  For this reason, the Board finds that the assigned schedular ratings are adequate to rate the Veteran's cold injury disabilities, and no referral for an extraschedular rating is required.  


ORDER

Service connection for degenerative arthritis of the lumbosacral spine is granted.  

Service connection for the residuals of SFW of the left side is denied.  

An initial rating of 20 percent for residuals of frostbite of the right lower extremity is granted from September 9, 2009, until August 23, 2011, subject to controlling regulations applicable to the payment of monetary benefits.

An initial rating of 20 percent for residuals of frostbite of the left lower extremity is granted from September 9, 2009, until August 23, 2011, subject to controlling regulations applicable to the payment of monetary benefits.

A rating in excess of 30 percent for residuals of frostbite of the right lower extremity from August 24, 2011, is denied.  

A rating in excess of 30 percent for residuals of frostbite of the left lower extremity from August 24, 2011, is denied.  

A separate 10 percent rating for peripheral neuropathy of the right lower extremity is granted, subject to controlling regulations applicable to the payment of monetary benefits.

A separate 10 percent rating for peripheral neuropathy of the left lower extremity is granted, subject to controlling regulations applicable to the payment of monetary benefits.


REMAND

The Veteran is also claiming service connection for bilateral knee disabilities and an acquired psychiatric disability, including PTSD.  Review of the record shows that the Veteran has not been afforded an examination of his knees to determine whether his current disability may be related to service, including injuries and treatment for knee disorders that he testified he sustained while on active duty.  While he was afforded psychiatric examinations in connection with his claims, the examination reports specifically excluded PTSD from consideration under the evaluation protocol.  Additionally, the Veteran testified at the Board hearing in August 2012 that he had received VA outpatient treatment, including X-ray studies of the knees, at the VA Medical Center at Highland Drive (VAMC) that are not available for review by the Board.  Such evidence may be of significant probative value.  

Finally, regarding the Veteran's claim for TDIU, it is noted the medical evidence of record shows that the Veteran is unemployed, and an informal claim for TDIU has been raised by the record.  The Veteran submitted a formal claim for TDIU in February 2012.  Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations").  See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the Veteran who raises the TDIU claim).  

When a TDIU claim is presented, a VA examining physician should generally address the extent of functional and industrial impairment from the Veteran's service-connected disabilities.  See Gary v. Brown, 7 Vet. App. 231 (1994); Martin (Roy) v. Brown, 4 Vet. App. 136 (1993). Under these circumstances, further evaluation is warranted.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  After obtaining any necessary consent, The RO/AMC should contact the (VAMC) and request copies, for association with the claims folder, of any and all records of treatment, including X-ray studies, that the Veteran received at that facility for his psychiatric and knee disabilities since 2009.  

2.  Following completion of the above, the RO/AMC should arrange for the Veteran to undergo a medical examination to ascertain the current nature and extent of his bilateral knee disorder.  The examiner should be requested to render an opinion regarding whether it is at least as likely as not (probability 50 percent or more) that a disability of either knee is related to service.  The claims folder should be made available for review in connection with this examination.  A complete and detailed history should be obtained from the Veteran.  The examiner should provide complete rationale for all conclusions reached.  

3.  Following completion of the development requested in paragraph 1, above, the RO/AMC should arrange for a mental disorders examination of the Veteran in order to determine the etiology, nature and severity of any psychiatric illness, to include PTSD.  The claims folder must to be made available to the examiner in conjunction with the examination.  All indicated tests are to be conducted.  .If the diagnosis of PTSD is deemed appropriate, the examiner should specify the specific in-service stressor found to be established by the record that is sufficient to produce the PTSD, and whether there is a link between the current symptomatology and one or more of the in-service stressors.  A complete rationale for any opinion expressed should be included in the examination report.

4.  The Veteran should be scheduled for an appropriate examination in order to determine whether his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. 

5.  Thereafter, the RO/AMC should readjudicate the issues on appeal.  If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits.  The Veteran should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim.  See 38 C.F.R. § 3.655 (2012).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs