Citation Nr: 1319482 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 95-18 034 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. The propriety of the award of attorney fees in the amount of $60,557.73 to Attorney Sema Lederman on December 2010. 2. Entitlement to a compensable rating, prior to April 9, 2002, for residuals of cold injuries to the bilateral lower extremities. 3. Entitlement to a disability rating in excess of 10 percent between April 9, 2002, and April 29, 2004, and in excess of 30 percent thereafter for residuals of cold injuries to the right lower extremity. 4. Entitlement to a disability rating in excess of 10 percent between April 9, 2002, and April 29, 2004, and in excess of 30 percent thereafter for residuals of cold injuries to the left lower extremity. 5. Entitlement to an effective date prior to March 24, 1999, for the grant of service connection for posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from August 1979 to May 1989. This case comes before the Board of Veterans' Appeals (Board) on appeal of March 1994 and December 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. As will be discussed below, the rating criteria for cold injury residuals were amended in January 1998. The most important aspect of this amendment was that a veteran could receive service connection for each separate extremity. As such, the Veteran's claims are properly identified on the cover page of this decision. The March 1994 decision denied an increased rating for the Veteran's cold injury residuals of the bilateral lower extremities. The December 2010 rating decision awarded service connection for PTSD and assigned a 70 percent rating, effective March 30, 2000. In an April 2012 statement of the case, the effective date changed to March 24, 1999. Although there have been partial grants of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the ratings and effective date assigned and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The increased rating claim for cold injury residuals was remanded most recently in September 2011. The requested action was taken and the case has since been returned to the Board for adjudication. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. FINDINGS OF FACT 1. On March 26, 2013, prior to the promulgation of a decision in the appeal, Veteran testified that he wished to withdraw his appeal related to attorney fees. 2. Prior to January 12, 1998, the Veteran's cold injury residuals of the bilateral lower extremities were manifested by subjective complaints of pain, but without objective evidence of chilblains, arthralgia, numbness, or cold sensitivity. 3. Between January 12, 1998, and April 9, 2002, the Veteran's cold injury residuals of the bilateral extremities were manifested by pain, but without clinical evidence of tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities of the affected parts. 4. Between April 9, 2002, and April 30, 2004, the Veteran's cold injury residuals of the bilateral lower extremities were manifested by arthralgia or other pain and locally impaired sensation, but without clinical evidence of tissue loss, color changes, hyperhidrosis, or x-ray abnormalities of the affected parts. 4. Beginning April 30, 2004, the Veteran's cold injury residuals of the bilateral lower extremities were manifested by symptoms such as arthralgia, numbness, sensory loss, but without evidence of complete paralysis of the femoral nerve, or moderately severe incomplete paralysis of the sciatic nerve. 5. The Veteran has neuromuscular bilateral pes planus caused by his service-connected cold injury residuals of the bilateral lower extremities. 6. The Veteran filed for service connection for PTSD in November 1995, which was denied in a March 1996 rating decision. The Veteran did not appeal this denial, and the decision became final 7. The most recent claim of entitlement to service connection for PTSD was received by VA on March 24, 1999. 8. In a December 2010 rating decision, the RO awarded the Veteran's service connection for PTSD, and assigned an effective date for that award of March 30, 2000. 9. In an April 2012 SOC, the effective date was changed to March 24, 1999. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issue of the propriety of disbursement of attorney fees are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The criteria for a 10 percent rating for each lower extremity, beginning January 12, 1998, for cold injury residuals of the bilateral feet, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7122 (1997); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7122; 62 Fed. Reg. 65207-65224 (Dec. 11, 1997) (effective January 12, 1998); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7122; 63 Fed. Reg. 37778-37779 (July 14, 1998) (effective August 13, 1998). 3. The criteria for a 20 percent rating between April 9, 2002, and April 30, 2004, for cold injury residuals of the right lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122, 4.124a (2012). 4. The criteria for a 20 percent rating between April 9, 2002, and April 30, 2004, for cold injury residuals of the left lower extremity have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2012). 5. The criteria for a rating in excess of 30 percent rating, beginning April 30, 2004, for cold injury residuals of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122, 4.124a, Diagnostic Codes 8520, 8526 (2012). 6. The criteria for a rating in excess of 30 percent rating, beginning April 30, 2004, for cold injury residuals of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122, 4.124a, Diagnostic Codes 8520, 8526 (2012). 7. The criteria for a separate 10 percent rating for neuromuscular bilateral pes planus due to cold injury residuals of the bilateral lower extremities is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.73, Diagnostic Code 5276 (2012). 8. The criteria for an effective date earlier than March 24, 1999, for the grant of service connection for the Veteran's PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.400(b)(2)(i) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Concerns As noted in the Introduction above, the Board remanded the Veteran's appeal in September 2011 for additional evidentiary development. In particular, the Board instructed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination to assess the current nature and etiology of his claimed cold injury residuals. After reviewing the VA examination report, the AOJ was then to readjudicate the Veteran's claims. The Veteran appeared for a VA examination in November 2011, and the corresponding examination report has been associated with the Veteran's claims folder. While the Board had requested that the Veteran be examined by a neurologist, the bulk of the examination was performed by a nurse practitioner (NP). Nevertheless, a VA neurologist reviewed the NP's examination report and concurred with her findings. Further, the neurologist also provided his own opinion on the issues. The Board finds that this review and additional opinion provided by a VA neurologist substantially complies with the September 2011 remand directives. Additionally, the RO readjudicated the Veteran's claims in an April 2012 Supplemental Statement of the Case (SSOC). Thus, the Board finds compliance with the Board's September 2011 remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran expressed his desire to withdraw the attorney fee claim at his hearing before the Board. As the Veteran has withdrawn the issue of the propriety of disbursement of attorney fees, and there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it must be dismissed. Initial Matters The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in February 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. This informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the February 2009 letter was mailed after the RO's March 1994 initial adjudication (prior to enactment of the VCAA) of the Veteran's claim for an increased rating, it was readjudicated most recently in an April 2012 statement of the case (SOC). Hence, although the February 2009 letter was untimely, the Veteran was not prejudiced by the timing of that letter, as he was given a reasonable opportunity to respond before his claim was readjudicated. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as in a SOC or an SSOC, is sufficient to cure a timing defect). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has submitted arguments that have generally referenced the applicable law and regulations necessary for a grant of an increased rating and earlier effective date. And prior to 2010, the Veteran was represented by experienced counsel. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (STRs) and VA medical records are in the file. He has not indicated private treatment for his cold injury residuals. The Veteran's Social Security Administration (SSA) records are also associated with the claims file. Additionally, he has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2011). The RO provided the Veteran appropriate VA examination most recently in November 2011. The VA examination report is thorough and supported by the other treatment evidence of record. The examination report discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria for the timeframe on appeal. The examination report also discussed the impact of the disability on the Veteran's daily living. Based on the examination, the absence of evidence of worsening symptomatology since the examination, and the fact there is no rule as to how current an examination must be, the Board concludes the November 2011 examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating Claim The Veteran contends that his cold injury residuals of the bilateral lower extremities warrant ratings in excess of those assigned for the timeframes on appeal. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). In this case, the Veteran's frozen feet disability was originally rated by the RO under 38 C.F.R. § 4.104, Code 7122, as it was in effect through January 11, 1998. Under this version, a 10 percent rating was warranted for residuals of bilateral frozen feet (immersion foot) with mild symptoms and chilblains. A 20 rating was warranted for residuals of unilateral frozen foot with persistent moderate swelling, tenderness, redness, etc. A 30 percent rating was warranted for bilateral frozen feet with persistent moderate swelling, tenderness, redness, etc. Loss of toes or parts, and persistent severe symptoms were rated 30 percent when unilateral, and 50 percent when bilateral. 38 C.F.R. § 4.104 (1997). Since the Veteran filed his claim, the regulations pertaining to the cardiovascular system, including disabilities rated under Code 7122, have been revised twice. The first amendments became effective January 12, 1998. See 62 Fed. Reg. 65207, 65219 (Dec. 11, 1997) (codified at 38 C.F.R. § 4.104, Code 7122 (1998)). Under the January 1998 amendments, Code 7122 provided for a 10 percent rating for cold injury residuals manifested by pain, numbness, cold sensitivity, or arthralgia. A 20 percent rating was assigned for pain, numbness, cold sensitivity, or arthralgia, plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions or osteoarthritis) of affected parts. A maximum 30 percent rating was assigned for pain, numbness, cold sensitivity, or arthralgia, plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions or osteoarthritis) of affected parts. Amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy should be separately evaluated under other diagnostic codes. Each affected part (hand, foot, ear, nose) is evaluated separately and the ratings are combined, if appropriate, in accordance with 38 C.F.R. §§ 4.25, 4.26. 38 C.F.R. § 4.104, Code 7122 (effective Jan. 12, 1998). The second amendments to Code 7122 became effective on August 13, 1998. See 63 Fed. Reg. 37,778-779 (July 14, 1998). The most recently revised criteria also provide a 10 percent rating for arthralgia or other pain, numbness, or cold sensitivity. A 20 percent rating is assigned arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormality (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 30 percent rating for 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). Note (1) states that the rater should separately rate amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, under other diagnostic codes. One would also separately rate other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under Code 7122. Note (2) states that each affected part (e.g., hand, foot, ear, nose) is rated separately and the ratings combined in accord with 38 C.F.R. §§ 4.25, 4.26. 38 C.F.R. § 4.104, Code 7122 (2012) (effective Aug. 13, 1998). When a regulation changes during the pendency of a claim, the version most favorable to the Veteran applies. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling in part Karnas v. Derwinski, 1 Vet. App. 308 (1991)). However, the amended version cannot be applied prior to its effective date. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; see also Green v. Brown, 10 Vet. App. 111 (1997). The amended versions of Diagnostic Code 7122 accordingly cannot be applied prior to their respective effective dates. Yet the old version or versions of this Diagnostic Code can be applied even after a new version becomes effective if doing so results in a higher evaluation than application of the new version. The Board observes that the revised regulations do not allow for retroactive application. In fact, when the Secretary adopted the revised rating schedule and published it in the Federal Register, the publication clearly stated effective dates of January 12 and August 13, 1998. Because the revised regulations expressly stated an effective date and contained no provision for retroactive applicability, the Board finds that their retroactive application is not warranted. The evidence of record also reflects that the Veteran has peripheral neuropathy of the bilateral lower extremities. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under Diagnostic Code 8526, a 10 percent rating is warranted for mild incomplete paralysis, a 20 percent rating is warranted for moderate incomplete paralysis, and a 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated at a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123 (2012). The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. VA regulation further provides that "[t]he combined ratings for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed." 38 C.F.R. § 4.68 (2012). Because the schedular criteria provide for a maximum 40 percent disability for the amputation of a leg below the knee, including amputation of the foot, under 38 C.F.R. § 4.71a, Codes 5165-5167, a combined evaluation in excess of 40 percent for the Veteran's right or left foot disability may not be granted under any provision. A. Factual Background By way of background, service connection was awarded for cold injury residuals of the bilateral lower extremities in a March 1990 rating decision. He was assigned a noncompensable rating, effective June 1, 1989. He filed a notice of disagreement, but did not perfect an appeal following the issuance of a SOC. He filed the current claim for increase in February 1992. A March 1994 rating decision denied an increased rating for cold injury residuals. The Veteran perfected an appeal, and in a July 2002 supplemental statement of the case, the bilateral cold injury residuals of the lower extremities were increased to 10 percent disabling, beginning April 9, 2002. Additionally, in a December 2010 rating decision, the Veteran's bilateral cold injury residuals claims were increased to 30 percent disabling, beginning April 30, 2004. On January 27, 1983, the Veteran was seen for his frostbite residuals of the feet. The examiner noted the Veteran had been seen at the 9th general dispensary for past frostbite of the feet and that he was placed on 24-hour bed rest. The Veteran reported no relief and that his feet felt cold and hurt when he touched them. Duration was for 7 days. The examiner noted there was no peeling or scaling. There was sensitivity to touch and "very cold." The assessment was to rule out frostbite. The examiner wrote that the Veteran would be referred to the medical officer for evaluation. Under the referral wording was written, "1st degree frostbite." On January 28, 1983, the Veteran was seen again. The Veteran reported he had been "infield" and had a pending problem since January 21, 1983. He stated he could not sleep because of pain. The examiner stated the plantar area was painful with no tenderness until the distal portion of the left plantar area with severe tenderness to all digits. On the right, there was no tenderness on the plantar area but there was severe tenderness to the 1st, 2nd, and 3rd digits. The assessment was rule-out frostbite. On January 31, 1983, the Veteran was seen for frostbite on both feet. The examiner noted the Veteran had been seen at the 9th general dispensary and Babenhausen and that at both times, he had been given 24-hour quarters. The examiner stated there was no profile for crutches or soft shoes for 11 days. Physical examination revealed "very tenderness to touch" with little swelling on the toe area. The assessment was frostbite. In January 1985, the Veteran denied ever having or having then a history of foot trouble. The remainder of the service treatment records is silent for any complaints of or treatment for residuals of frostbite. A December 1988 Report of Medical Examination shows clinical evaluation of the feet was normal. In July 1989, the Veteran filed a claim for compensation benefits for frostbite to his feet in 1983. A July 1989 VA treatment record shows the Veteran was seen with complaints of heel pain. The examiner noted there was no history of this before but noted the Veteran had a history of frostbite. The examiner concluded there was left heel pain there with questionable etiology, but noted that the x-ray was negative. A VA examination was provided in August 1989. The examiner wrote the following: He alleges frostbite of the feet. When his shoes and socks were taken off [at the time he sustained frostbite], the color of his feet and toes were purple. He had no blisters, thus indicating that he had no more than 1st degree frostbite. He claims he still has residuals of the frostbite[,] which is of course unlikely in the absence of the severity beyond 1st degree. The toes do not appear to be forth-shortened. He has excellent pulses in both feet. X-rays of the toes are to be taken. X-rays taken of the feet at that time were normal. The examiner diagnosed 1st degree frostbite of the feet with no residuals. In February 1992, the Veteran was seen with complaints, which included his feet. The examiner noted that July 1989 x-rays were within normal limits. Physical examination revealed feet with 2+ dorsalis pedis pulses, heels nontender, and pinprick intact. The examiner assessed the Veteran as possibly having 2nd degree frostbite versus plantar fasciitis. The record shows the Veteran was diagnosed with diabetes mellitus in approximately May 1993. The Veteran underwent a VA examination in July 1994, during which he was diagnosed as having symmetrical distal polyneuropathy, historically related to frostbite and diabetes mellitus. At that time, the Veteran described an in-service snow storm, during which he laid in the snow for several hours and caused frostbite in the feet. The examiner noted that the STRs do not confirm this incident. The Veteran described numbness, tingling, and burning in his feet since then, and these symptoms have gradually progressed. He indicated that he was diagnosed as having diabetes mellitus at least two years prior to the instant examination. Neurological examination revealed diminished deep tendon reflexes at the knees and ankles. The motor examination revealed 3/5 weakness of dorsiflexion of the great toes and feet, bilaterally. There is no evidence of atrophy of muscles or change of muscle tone. Sensory examination revealed a hypersensitivity to pin prick and diminution to light touch in stocking distribution to knee level. The sole of the foot is insensitive to touch or pin prick, and vibratory sensation is diminished at the bilateral ankles. The examiner did not describe any swelling, tenderness, or chilblains, nor did the Veteran's report the same. The examiner indicated that the history and findings suggest preexisting polyneuropathy secondary to frostbite with further neurological impairment associated with diabetic neuropathy. In June 1997, the Veteran underwent another VA examination related to his cold injury residuals. He again reported a 1982 in-service accident wherein he was thrown into a bank of snow and covered for over three hours. He recalled awakening in a Nuremberg hospital. He described that upon awakening he had "no feeling in the feet and black feet." He indicated that he refused amputation, and currently described his feet as either being totally numb or painful. He described severe paroxysm that occurred with numbness and last from two to three minutes. The Veteran indicated that these incidents are followed by intense pain for a few minutes with redness on the sides and bottom of his feet. He indicated that these episodes occur daily, and subside spontaneously. He describes similar symptoms in his hands. Physical examination of the feet revealed present pedal pulses and of good volume. There was some scaly dermatitis seen around the sides of both feet with some redness on the toes of the feet. His feet were warm, and he had diminished sensation to light touch in his toes and the soles of his feet. The examiner diagnosed the Veteran as having frostbite of the feet, by history, with injury due to cold and residual vasospastic pain and dysthesia. In a July 1997 VA outpatient treatment report, the examiner noted the Veteran had "severe diabetic neuropathy." The examiner wrote, "Apparently, all his symptoms [are secondary to] severe neuropathy." The Veteran also has a diagnosis of hypertension, which was diagnosed in approximately 1992. In an August 1997 VA treatment report, the Veteran's treating physician wanted him to undergo an EMG to determine the cause of his bilateral foot pain. She requested the opinion of another doctor. This doctor indicated that when most people have an EMG with a history of a cold injury, the EMG is typically negative. The EMG, however, would how whether a patient has neuropathy from diabetes. The physician indicated that the Veteran had a history compatible with small fiber neuropathy. The Veteran underwent a VA examination in January 1998, during which he reported being hospitalized with 2nd degree frostbite during service. He maintains he was diagnosed as having diabetes mellitus in 1989. Regarding his feet, the Veteran described soreness, tenderness, coldness, and that they sometimes turn blue. He described difficulty standing for long periods of time and cannot walk far. He denied any excess sweating and had minimal athlete's foot. The examiner indicated that there is no evidence of specific cold sensation, Raynaud's phenomenon, or hyperhidrosis, although the Veteran does have paresthesias and chronic pain, which is consistent with his history of diabetes mellitus. There are no significant fungal infections, although there is some minimal dermatophytosis. He has no evidence of skin breakdown or ulceration, and there are no frostbite scars. Physical examination revealed mild dermatophytosis in both feet, but no onychomycosis. The examiner appreciated adequate pulses in the extremities. The examiner diagnosed history of cold injury to both lower extremities. In a statement received by VA dated in June 1999, the Veteran related that he was "buried alive" under snow during service and had to be dug out of the snow. In an August 1999 VA treatment note, the Veteran was noted to have severe paresthesias with a history of frostbite. Also noted was that he had severe diabetic neuropathy. A May 2000 VA examination report, the examiner diagnosed "[h]istory of cold injury with continuing symptomatology and no abnormality found on physical examination." He noted that x-rays done in 1998 revealed "a totally normal examination." The Veteran described painful/numb feet with increased numbness upon sitting for long periods of time or walking far. The examiner noted the history of questionable neuropathy versus plantar fasciitis. The Veteran related that he has swelling of the feet with redness, and this occurs three to four times per week following walking. He indicated that when he was hospitalized in 1982, his feet became purple, but did not get black. He endorsed cold sensitivity, with worsening numbness. He denied any Raynaud's phenomenon, but described that when his feet get cold, they turn paler than they do otherwise. He denied any episodes of blueness of the feet since the initial episode. Physical examination of the feet was within normal limits, including sensory and motor testing. In April 2002, the Veteran sought VA treatment for increasing complaints of continued bilateral foot pain. The treating physician indicated that the Veteran has a history of severe symptoms of vasospasm secondary to his history of frostbite to the feet. He had an antalgic gait and has experienced muscle spasms in the bilateral lower extremities over the past several weeks. The Veteran denied a history of foot ulcers. Visual examination was abnormal inasmuch as he had hammertoes and mild deformities. Pedal pulses were normal/present, and his skin was warm to touch and well-hydrated. Sensory examination was abnormal because he had a severe loss of light touch sensation, extensive paresthesias and anesthesia of all toes, no response to monofilament testing, and questionable loss of proprioception. The treating professional indicated that the Veteran's diabetic foot examination was a moderate risk because of his decreased sensation/circulation or deformity and no ulceration. The Veteran was afforded another VA examination of his feet in April 2004, during which he endorsed cold sensitization, Raynaud's phenomenon, hyperhidrosis, paresthesias, chronic pain, edema, possible arthritis, changes in skin color, thickening of the skin, cold sensation even in warm weather, sleep disturbance associated with the symptoms, numbness, tingling, burning, and excess sweating. The Veteran denied wearing socks or using any treatment other than lotions/creams on his feet. Physical examination showed that the Veteran walks as if his feet are very painful. There was no evidence of edema and the temperature of his feet was warm. There was no atrophy and his feet were slightly moist. There was normal texture to the skin, but no ulceration or hair growth seen. The examiner indicated that there may be evidence of fungus or other infection on one or two toenails. Neurological examination revealed no reflexes, and the examiner indicated that the Veteran has diabetes. Sensory examination revealed impaired sensation on the plantar surface of his feet, and cannot feel the plastic probe on any of the plantar surface, including the feet and toes. Motor examination revealed weakness, but there is no evidence of atrophy. Orthopedic testing was within normal limits as his cold injury residuals did not cause any orthopedic problems. The Veteran had no hair on his feet up to the middle of his calves, bilaterally. The examiner noted pain with pressure on the plantar surfaces as well as loss of sensation. He indicated that this could be considered peripheral neuropathy, likely due to the cold injury, but the Veteran also had bilateral plantar fasciitis. The examiner indicated that he would have to resort to speculation to determine whether the Veteran's cold injury caused his bilateral plantar fasciitis or not. He noted, however, that the Veteran has problems walking due to pain and this is likely due to his plantar fasciitis. The examiner diagnosed the Veteran as having cold injury residuals of the bilateral feet with arthritis, hallux valgus, and pes planus. The Veteran was afforded another cold injury residual VA examination in October 2009, during which the Veteran essentially reported similar symptoms as in the April 2004 VA examination. The Veteran indicated that he sees VA podiatry once every three months, but does daily foot checks and wears diabetic shoes. He denied any additional treatment for his cold injury residuals. The Veteran denied any additional cold injury to the bilateral feet. Further, he denied amputations, other tissue loss, or Raynaud's phenomenon due to his cold injuries. He endorsed hyperhidrosis and pain that is worse in cold weather, walking, or standing. He described this pain as burning, aching, shooting, and throbbing, with moderate severity. The Veteran indicated that he has bilateral tingling of the feet, and worse cold sensitivity in colder weather. He endorsed swelling of the feet, recurrent fungal infections on the right foot, and severe decreased loss of sensation in the bilateral feet. The examiner did not observe any abnormal color of the feet, nor did he see any evidence of ulceration/breakdown. There is a history of nail abnormalities in both feet. There was no cold injury stiffness or arthritis of the joints found. The Veteran's foot skin was thickening, and he endorsed sleep disturbance due to his symptoms. Physical examination revealed thick and red skin (the redness being minimal) on the bilateral feet. Skin temperature was normal, moisture was drier than normal, texture was scaly, normal hair growth, fungus is present on the nails, and there is callus formation. There were no scars, infections, or ulcerations. Detailed reflex examination was normal, but sensory testing was decreased as to light touch and pain sensation in the left foot. Monofilament testing was absent. Muscle function examination was normal, as were peripheral pulses. There was no evidence of Raynaud's phenomenon. The examiner observed mild edema in the bilateral feet, and there was evidence of pes planus. Ligament testing was normal. Following physical examination and review of the claims file, the examiner diagnosed the Veteran's as having symmetrical, distal polyneuropathy, cold injury residuals of the bilateral feet, likely aggravated by diabetic neuropathy. These disabilities impact his daily activities including mild impact on recreation, bathing, and dressing; moderate impact on chores and shopping; severe impact on exercise; and prevent participation in sports. The examiner indicated that there is no way to determine if the Veteran's polyneuropathy was primarily from one or the other etiology, he opined that it is more likely than not that the cold injury caused the initial polyneuropathy and the diabetes likely aggravated the condition. The examiner could not state which has the greater impact without resort to speculation. At that same appointment, the Veteran was afforded a VA examination of the feet. The examiner indicated that the Veteran had mild, bilateral pes planus, to which the Veteran responded that he was unaware of this condition. He described bilateral foot pain that is helped with standing in orthotics with diabetic shoes. He denied any other trauma to the feet other than the cold injury. He described painful feet while standing, walking, and at rest. Some swelling, redness, stiffness, fatigability, and lack of endurance was noted. The Veteran's bilateral pes planus revealed normal non-weightbearing Achilles alignment, but weight bearing revealed inward bowing that is correctable with manipulation, but there is pain with manipulation. There is midfoot malalignment that is also correctable by manipulation, but is only painful on the left. There is mild pronation, and arch is present on weightbearing and non-weightbearing with pain on manipulation. Location of the weightbearing line is medial to great toe. The examiner opined that the Veteran has minimal remaining arch on weightbearing as he loses over half the height of the arch from non-weightbearing. There is no muscle atrophy of the feet. The examiner indicated that the Veteran's gait without shoes is very painful to touchdown. He takes small, cautious steps that are more like a march so he does not have to touch his toes. With shoes, the Veteran is more assured and less painful, but the examiner noted that his feet are externally rotated. X-rays of the feet revealed mild hallux valgus of the right first metatarsophalangeal joint with superimposed degenerative change within the joint. The right foot showed no acute fracture, but there was evidence of a small plantar spur. X-ray of the left foot revealed hallux valgus with superimposed degenerative joint disease. In addition, he had mild degenerative joint disease at the first tarsometatarsal joint, but no evidence of fracture. There was a small plantar calcaneal spur, and mild enthesopathic change noted at the insertion of the Achilles' tendon. The examiner diagnosed the Veteran as having bilateral pes planus with mild hallux valgus. He opined that it is more likely than not that the Veteran's bilateral pes planus developed secondary to his neuropathic issues. He stated that his is also known as neuromuscular pes planus. In reaching this conclusion, the examiner based his opinion on the physical examination, review of the claims file, interview of the Veteran, and the fact that the Veteran was never shown to have bilateral pes planus prior to his service-connected neuropathy. As requested by the Board in its September 2011 remand, the Veteran was afforded a current VA examination in November 2011. The Veteran reported similar history as described before, including having black feet and gangrene during service. He contends that "they wanted to amputate," but his mother told the treating personnel no. He indicated that for several weeks after the frostbite, he could not feel cold, heat, or sharp objects. The Veteran reported that he was unable to walk for several weeks, and he continued to have bilateral foot pain. The Veteran was diagnosed as having diabetes mellitus in the early-1990s, and he described his diabetes contributing to bilateral foot numbness, and his frostbite residuals as contributing to pain. The Veteran endorsed cold sensitivity, numbness, and locally impaired sensation in the bilateral feet. X-rays of the feet in 1989 and 2000 were normal, and x-ray in 2004 was normal except for degenerative changes in the first metatarsophalangeal joint in the right foot. The October 2009 x-rays are as described above and the impression was righter greater than left hallux valgus deformities with superimposed degenerative joint disease, first metatarsophalangeal joint. A 1998 EMG was negative for nerve damage. The Veteran uses a cane to assist with ambulation. The examiner indicated that the Veteran has significantly diminished sensation in the feet but not to the extent that would be equally well-served by an amputation with prosthesis. She noted the Veteran had diminished sensation to light touch and vibration on the soles of his feet. The examiner also noted that the Veteran's bilateral foot problems impact his ability to work inasmuch as he experiences significant pain (almost constant) in the soles of his feet with severe difficulty ambulating. The examiner further diagnosed the Veteran as having diabetic neuropathy of the bilateral lower extremities that causes numbness and tingling in the feet. This was described as including severe constant pain, moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in the bilateral feet. Strength testing in the bilateral lower extremities was 4/5 in the knees and ankles. Deep tendon reflexes were 2+ in the bilateral ankles, but 1+ in the bilateral knees. Light touch testing revealed normal sensitivity in the bilateral knees/thigh, decreased sensation in the bilateral ankles/lower leg, and absent sensation in the bilateral feet. The Veteran had decreased position sense, vibration sensation, and cold sensation in the bilateral lower extremities. There is no evidence of muscle atrophy or trophic changes. The examiner indicated that the Veteran had diabetic peripheral neuropathy of the bilateral lower extremities, and she identified it as mild, incomplete paralysis of the sciatic and femoral nerves. The examiner indicated that a 1996 EMG test was normal with respect to the Veteran's bilateral lower extremities. Following physical examination and interview of the Veteran, as well as review of the claims file, the examiner indicated that the Veteran first experienced frostbite of the feet during service in 1983 and he has complained of constant pain in the soles of his feet since then. She indicated that he was later diagnosed as having diabetes mellitus and diabetic neuropathy in the early-1990s with intermittent numbness in the feet. The Veteran has contended that the pain in his feet has never stopped since his frostbite injury and he has "learned to live with it." He said his symptoms somewhat improve when he is able to rest, put his feet up, and keep them warm. He endorsed increased symptoms in colder weather and upon walking any distance. The examiner indicated that cold injury residuals can result in long-term pain, abnormal sensation, and hot/cold sensitivity, but she found it "difficult to state with certainty if his neuropathy is primarily from his diabetes or from his frostbite." She opined, however, that his cold injury likely caused the initial neuropathy and the diabetes likely aggravated it. In addition, a VA neurologist reviewed the examiner's report and concurred with her findings. He stated that the Veteran has a documented frostbite injury, diabetes mellitus, and painful peripheral neuropathy. He indicated that either diabetes mellitus or frostbite can cause this type of neuropathy and there is no other obvious cause of the neuropathy. In addition, the neurologist indicated that the Veteran reported pain in his feet beginning after the frostbite injury and this is before he was ever diagnosed as having diabetes mellitus. Thus, he opined that "it is more likely than not that his painful neuropathy is caused by frostbite, rather than diabetes. It is more likely than not that his diabetes has aggravated his frostbite neuropathy." Also in its remand, the Board had laid out the relevant and credible evidence that the examiner should consider prior to reaching his/her opinion. The examiner opined that it is unlikely that the residuals of first degree frostbite would be present 10 years after the cold injury. She stated that first degrees frostbite generally affects the surface skin, and it becomes frozen. At that time, the skin usually develops, white, red, and yellow patches and becomes numb. She opined that the area affected usually does not become permanently damaged and it only impacts the top layers of skin. She said that first degree frostbite can lead to long-term sensitivity to both heat and cold in the areas affected. The examiner further opined that it is unlikely the residuals of first degree frostbite would be progressive over time-other than continued hot/cold sensitivity. She stated that cold injury residuals become progressive if one is repeatedly exposed to cold or develops frostbite again. The examiner indicated that she was unable to clearly state whether the Veteran had congruent skin changes in August 1989 that were consistent with frostbite residuals. She noted that patients develop various symptoms depending on conditions, degree, and exposure at the time of the frostbite. She indicated that the Veteran contends his feet were black, gangrene on his soles and with purple toes. The examiner indicated that these complaints are consistent with second degree frostbite. The examiner again opined that it is unlikely that symptoms associated with the Veteran's first degree frostbite would progress, but he could have long-term sensitivity to temperature changes. She stated that it is likely that the Veteran's neuropathy associated with diabetes mellitus is apt to progress much like second degree frostbite. Finally, she stated that people with frostbite may have cold sensitivity, sensory loss, chronic pain, and a variety of other symptoms that could last for years. B. Analysis Upon careful review of the evidence of record, the Board finds that the Veteran is entitled to a 10 percent rating, beginning January 12, 1998, but not higher, and a 20 percent rating, beginning April 9, 2002, but not higher, for his residuals of cold injuries to the feet. A rating in excess of 30 percent beginning April 30, 2004, for his cold injury residuals of the bilateral lower extremities is not warranted. The Board finds, however, that it would not be considered pyramiding to award the Veteran a separate 10 percent rating for each foot for bilateral pes planus. C. Period prior to January 12, 1998 The Board finds that the Veteran has not been diagnosed as having chilblains at any time during this appeal period, as such, he does not meet the 10 percent rating for cold injury residuals of the feet prior to January 12, 1998. D. Period from January 12, 1998 to April 9, 2002 In his January 1998 VA examination, there were complaints of tenderness, soreness, coldness, and color change in his feet. Physical examination did not reveal anything other than mild dermatophytosis and the Veteran was diagnosed as having a history of cold injury to the bilateral lower extremities. In May 2000, despite the Veteran's reports of numbness, redness, and swelling, showed a normal physical examination for the feet-including sensory and motor testing. Again, after the amendment to Diagnostic Code 7122, effective January 12, 1998, a 10 percent rating for each foot is warranted if there is evidence of cold injury residuals manifested by pain, numbness, cold sensitivity, or arthralgia. The Veteran has met the rating criteria of 10 percent for each lower extremity because of evidence of pain/numbness, but it cannot be effective any earlier than the effective date of the amendment. In this case, the effective date of the amendment is January 12, 1998. As such, the Veteran is entitled to a 10 percent rating for each lower extremity beginning January 12, 1998, but no earlier, for his cold injury residuals. E. Period from April 9, 2002, to April 29, 2004 The Board finds, however, that beginning April 9, 2002, the Veteran is entitled to a 20 percent rating, but not higher, in each foot due to his cold injury residuals. In April 2002, the Veteran was first shown to have bilateral foot pain as well as impaired sensation in his bilateral feet. According to Diagnostic Code 7122, the Veteran is entitled to a 20 percent for the symptoms he exhibited during his April 2002 VA examination. Namely, his bilateral foot pain and severe loss of light touch sensation. However, April 9, 2002 and April 29, 2004, the Veteran did not meet the criteria for a rating in excess of 20 percent for each foot. With respect to the rating criteria in effect prior to January 1998, evidence during this period does not show bilateral frozen feet with persistent moderate swelling, tenderness or redness. Likewise, with respect to the criteria in effect from August 1998, the record does not show pain, numbness, cold sensitivity, or arthralgia plus two additional problems such as tissue loss, nail abnormalities, color changes, impaired sensation, hyperhidrosis, or x-ray abnormalities. While the April 2002 treatment record notes complaints of bilateral foot pain, severe loss of sensation, extensive parethesias, and anesthesia, there is no evidence during this period of tissue loss, nail abnormalities, color changes, hyperhidrosis or X-ray abnormalities as contemplated by ratings in excess of 20 percent. Accordingly, between April 9, 2002 and April 30, 2004, the overwhelming evidence of record shows that the Veteran's symptoms are most analogous to those described under the criteria for a 20 percent rating. F. Period from April 30, 2004 The Board will now turn to whether beginning April 30, 2004, the Veteran's cold injury residuals of the bilateral lower extremities warrant a rating in excess of 30 percent. For the reasons described below, the Board finds they have not. The record does not show that the Veteran's cold injury residuals resulted in bilateral loss of toes or parts with persistent severe symptom as contemplated by a higher 50 percent rating under the pre-1998 rating criteria. On the contrary, the record does not show any amputation of loss of toes or either foot. Beginning April 30, 2004, the Veteran has been in receipt of the maximum schedular rating for cold injury residuals under both the January 1998 and current versions of Diagnostic Code 7122. Nevertheless, the Board further notes that higher evaluation would be warranted if the disability was manifested by moderately severe incomplete paralysis of the sciatic nerve (8520), or complete paralysis of the femoral nerve (8526). A review of the pertinent evidence of record shows that the Veteran has peripheral neuropathy of the bilateral lower extremities that has most recently been attributed to both his nonservice-connected diabetes mellitus and his service-connected cold injury residuals of the bilateral feet. The November 2011 VA examiner and addendum could not determine the primary cause of the Veteran's symptoms. It is now well-settled that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability, in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Nevertheless, the evidence of record does not support that beginning in April 2004, the Veteran's bilateral lower extremity problems-including those symptoms that may be attributable to his nonservice-connected diabetes mellitus-either caused complete paralysis of the quadriceps extensor muscles or moderately severe paralysis of the sciatic nerve. In fact, in the most recent VA examination, the examiner indicated that the Veteran experienced mild, incomplete paralysis of the sciatic and femoral nerves. Thus, the Board will considered whether at any other timeframe on appeal the Veteran's bilateral foot disability would warrant a higher rating under Diagnostic Codes 8520 and 8526 for peripheral nerve problems. The Board finds, however, that the evidence does not show mild incomplete paralysis of either the sciatic or femoral nerve to warrant a 10 percent rating under those criteria. The Board is aware of Note (1) listed under the current version of Diagnostic Code 7122, which indicates that consideration of separate ratings should be made for additional complaints such as peripheral neuropathy. The Board finds, however, that the symptoms described by the Veteran include painful motion, numbness, and cold sensitivity and these are all contemplated by the rating criteria listed under Diagnostic Code 7122. As such, he is not entitled to separate ratings under Diagnostic Codes 8520 and 8526 at any time on appeal. G. Lay Statements In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498. The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In reaching the decisions above, the Board has considered the numerous lay statements provided by the Veteran regarding the severity of his in-service frostbite. And in the most recent remand, the Board questioned the credibility of many of the Veteran's lay statements regarding the severity of his bilateral foot problems. For example, allegations of lying in the snow for hours, laying in the snow unconscious after an explosion, sustaining second or third degree frostbite, waking up with his feet being black, refusing amputation, or being hospitalized for the frostbite in service appear to be false statements. The Board finds that these statements lack credibility and they are not supported by the evidence of record. In fact, there are 6 volumes of clinical evidence, none of which support a finding that the Veteran had any more than mild frostbite during service. With that being said, the competent and credible evidence of record does not support ratings in excess than those currently assigned for his cold injury residuals of the feet, and the Board assigns more probative weight to the examination findings provided by professionals than the Veteran's lay statements. In relation to the cold injury residuals in the Veteran's feet, the Board has again considered the possible application of other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, however, the Board finds that there are no other criteria (other than listed below) that may be applied in rating the cold injury residuals in the Veteran's feet. H. Pes Planus The Board finds that it would not be considered pyramiding to award the Veteran separate 10 percent rating for bilateral pes planus under Diagnostic Code 5276. The evidence of record shows that in his August 2009 VA examination, he was diagnosed as having bilateral pes planus that developed secondary to his neuropathic issues. He identified this as neuromuscular pes planus. This separate award is not pyramiding inasmuch as the criteria are based upon foot shape/deformity and movement, and not the presence of sensory or neurological problems. The Board finds that the symptoms related to the Veteran's bilateral pes planus are no more than moderate in nature. There is no objective evidence of marked deformity of the bilateral feet, with pain on manipulation and use accentuated, swelling on use, and characteristic callosities. I. Extraschedular Consideration The Board also has considered whether the Veteran is entitled to a greater level of compensation for his cold injury residuals of the bilateral lower extremities on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, 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. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected cold injury residuals are inadequate. A comparison between the level of severity and symptomatology of the Veteran's cold injury residuals with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran primarily reports pain and numbness in the bilateral feet. As discussed above, the current staged ratings assigned are adequate to fully compensate the Veteran for his pain, numbness, and other symptoms. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Earlier Effective Date Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West Supp 2012); 38 C.F.R. § 3.151(a) (2012). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2012). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012). If a Veteran files an application for service connection with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C.A. §§ 7104, 7105 (West 2002). If he does not initiate an appeal within one year, or if he initiates a timely appeal and the appeal is denied, the disallowance becomes final. See 38 C.F.R. §§ 20.302, 20.1100, 20.1103 (2012). With exceptions not here applicable, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 C.F.R. § 3.400(q), (r) (2012). Specifically, the effective date of an award of disability compensation based upon the submission of new and material evidence other than service department records received after final disallowance will be the date of receipt of the new claim or the date that entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2012). As noted above, service connection for PTSD was awarded in a December 2010 rating decision. A 70 percent rating was assigned, effective March 30, 2000. The Veteran has appealed the effective date for the grant of service connection. An effective date of March 24, 1999 was awarded in an April 2012 statement of the case. Based upon complete review of the evidence on file, and for the reasons and bases expressed immediately below, the Board finds that the Veteran is not entitled to an effective date earlier than March 24, 1999 for the grant of service connection for PTSD. As has been discussed in the legal criteria section above, the assignment of an effective date for service connection is in essence governed by the date of filing a claim with VA. See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). By way of background, the Veteran first filed his claim for service connection for PTSD in November 1995. It was denied in a March 1996 rating decision, finding no evidence of treatment for, or diagnosis of, PTSD, nor was PTSD shown to be related to some event or experience during service. The Veteran did not appeal the denial. As such, the March 1996 decision became final. 38 C.F.R. §§ 3.104, 20.1103 (2012). In light of this final decision, the Board's inquiry is therefore limited by operation of law to whether the Veteran filed a claim of entitlement to service connection for a back disability after the March 1996 decision, and before the current effective date of the award in question, March 24, 1999. VA received the Veteran's most recent claim to reopen his previously denied service connection claim for a low back disability on March 24, 1999. The RO found that new and material evidence had not been received to reopen the previously denied claim for service connection PTSD, and denied it in December 1999 and April 2001 rating decisions. In August 2001, the Veteran filed a Notice of Disagreement to this denial. Again, an April 2012 statement of the case awarded an effective date of March 24, 1999, for the grant of service connection for PTSD. The Board notes that VA must liberally construe all documents filed by the veteran when considering whether a statement that could constitute a notice of disagreement (NOD) takes the proper form. See EF v. Derwinski, 1 Vet. App. 324, 326 (1991). With this in mind, the Board has reviewed the documents contained in the claims file dated between the denial in March 1996 and the effective date of his current PTSD claim, March 24, 1999. Simply put, there is no evidence that the Veteran filed an NOD within the year following the March 1996 rating decision, nor may any document dated between March 1996 and March 1999 be construed as a request to reopen the PTSD claim. The Board appreciates the Veteran's lay statements, in which he maintains he is entitled to an effective date earlier than March 24, 1999, for his service-connected PTSD. The Board does not disagree with the Veteran's contention that he filed a claim of service connection for PTSD in November 1995. The Board finds, however, that this claim of service connection was denied in March 1996, and it became final. As such, the earliest effective date possible for the Veteran's claim to reopen for service connection for PTSD is March 24, 1999. An effective date earlier than March 24, 1999, for the grant of service connection for PTSD is denied. ORDER The appeal with respect to the propriety of the award of attorney fees is dismissed. A 10 percent rating for each lower extremity, beginning January 12, 1998, for cold injury residuals of the bilateral lower extremities is granted. A 20 percent rating for each lower extremity, beginning April 9, 2002, for cold injury residuals of the bilateral lower extremities is granted. A rating in excess of 30 percent for each lower extremity, beginning April 30, 2004, for cold injury residuals of the lower extremities is denied. A separate 10 percent rating for bilateral pes planus under Diagnostic Code 5276 is granted. An effective date earlier than March 24, 1999, for the grant of service connection for PTSD is denied. ______________________________________________ DAVID. L WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs