Citation Nr: 1321496 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 12-13 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for right foot cold injury residuals and chronic onychomycosis of the toenails. 2. Entitlement to an initial evaluation in excess of 20 percent for left foot cold injury residuals and chronic onychomycosis of the toenails. REPRESENTATION Appellant represented by: John Berry, Attorney ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION Pursuant to 38 C.F.R. §20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from November 1951 to October 1953. These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2011 of a Department of Veterans Affairs (VA) Regional Office (RO) which denied a disability evaluation in excess of 20 percent for right and left foot cold injury residuals and onychomycosis. These issues were remanded by the Board in February 2013 for further development. The issue of service connection for arthritis has been raised by the record. See May 2013 Representative's Statement. As the issue has not been considered by the Agency of Original Jurisdiction, it is referred to the RO for appropriate action. FINDING OF FACT The cold injury residuals in the Veteran's right and left feet are manifested by numbness, cold sensitivity and nail abnormalities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for right foot cold injury residuals and chronic onychomycosis of the toenails have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2012). 2. The criteria for a disability rating in excess of 20 percent for left foot cold injury residuals and chronic onychomycosis of the toenails have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An July 2007 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). That letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and VA examination reports have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). These matters were most recently before the Board in February 2013, when the case was remanded to the VA RO via the Appeals Management Center (AMC), in Washington, D.C. to afford the Veteran an additional VA examination. All of the actions previously sought by the Board through its prior development requests have been completed as directed, and the Veteran does not contend otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). The Veteran was last afforded a VA examination in February 2013. The examiner reviewed the Veteran's claims file in its entirety, examined the Veteran thoroughly and provided explanations for his findings regarding the severity and symptoms of the Veteran's cold injury residuals with onychomycosis. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). Subsequently, a supplemental statement of the case (SSOC) was issued in April 2013, which continued the previous denial. The attorney representing the Veteran, in May 2013 correspondence, notes that he has not received a copy of the February 2013 VA examination report. He then says that, in view of the rater's comments in the supplemental statement of the case, the examining medical professional has failed to provide an adequate rationale for the findings in the report. He then further says he is not requesting a copy of the examination report and desires the Board to proceed with its adjudication. As discussed below, the Board finds the examination report sufficient to make a decision on the claims. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In instances where the rating being appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). Procedurally, in a November 2011 rating decision, the Veteran was granted service connection for cold injury residuals for his right and left foot and was assigned a 20 percent disability rating for each foot, effective July 15, 2011, pursuant to 38 C.F.R. § 4.104, DC 7122. Under DC 7122, cold injury residuals manifested by 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) is assigned a 20 percent rating. A maximum schedular 30 percent rating is warranted for cold injury residuals manifested by 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, and x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). Under Note (1) of DC 7122, manifestations such as amputation of the fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy must be rated separately under other diagnostic codes. Other disabilities that have been diagnosed as being residual effects of cold injuries, such as Reynaud's phenomenon, muscle atrophy, etc. must also be separately rated, unless they are used to support a rating under DC 7122. Note (2) provides that each affected part (e.g., hand, foot, ear, nose, etc.) must be rated separately and combined in accordance with 38 C.F.R. §§ 4.25 and 4.26. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Factual Background and Analysis The Veteran contends that his right and left foot cold injury residuals with onychomycosis warrant a disability rating in excess of 20 percent. He asserts that he has cold sensitivity in the feet, especially during cold weather. He described numbness in the feet which he believed was related to his cold exposure during his service in Korea. In November 2011, a VA examiner completed a disability benefits questionnaire in order to determine the severity of the Veteran's right and left foot cold injury residuals with onychomycosis. The examination report reveals the Veteran had cold sensitivity and nail abnormalities of the feet bilaterally. The report's instructions specifically noted that diagnoses of subarticular punched out lesions or osteoarthritis must be confirmed by x-ray. In accordance with the Board's remand, the Veteran was examined again in February 2013. During the examination the Veteran reported cold sensitivity to the feet and explained that he wore socks to bed and insulated boots to scoop snow. He explained that when he went shopping, his feet began to tingle within fifteen minutes. The Veteran stated that he had swelling on the feet as well. On physical examination, the Veteran was found to have cold sensitivity and nail abnormalities bilaterally. X-rays demonstrated mild to moderate degenerative joint disease in the first metatarsophalangeal (MTP) joint of the right foot and mild MTP degenerative joint disease in the first toe of the left foot and moderate degenerative joint disease at the tarsometatarsal joint of the first metatarsal. The examiner stated, however, that in his opinion the Veteran's arthritis was less likely than not related to the Veteran's cold injury. He stated that arthritis found on x-ray was more likely than not age-related. There was no functional impairment due to cold injury residuals that would be equally well served by an amputation with prosthesis, no scars and no functional impact on the Veteran's ability to work. The requirements for a higher, 30 percent rating, are quite specific; and the findings of the examination report are quite clear. While the examiner found one (nail abnormalities) of the two of the additional manifestations required for a 30 percent rating, none of the other required manifestations; i.e., tissue loss, color changes, locally impaired sensation, hyperhydrosis, or x-ray abnormalities associated with the Veteran's cold residual injuries, was shown. The February 2013 examination report clearly notes that, while arthritis is shown on x-ray, it is not the type of arthritis associated with cold weather injuries. Osteoporosis, subarticular punched out lesions, and osteo-arthritis are the listed criteria for an increased 30 percent rating, and these are specifically noted as not present. Further, the evidence does not show such an exceptional disability picture that the available scheduler evaluations for service-connected left and right foot residuals of frostbite are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology for each foot. As such, it cannot be said that the available schedular evaluations are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, a claim for a total evaluation due to individual unemployability due to service-connected disabilities (TDIU) is part of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has jurisdiction to consider the Veteran's possible entitlement to TDIU rating when the issue is raised by an assertion or is reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. The evidence of record indicates that the Veteran retired in 1992 for unrelated reasons. See March 2006 VA examination. The Veteran has not contended, and the record does not show, that his service-connected residuals of left and right foot cold injury residuals, exclusively, preclude him from obtaining substantial employment. As such, the issue of entitlement to a total disability rating based on TDIU has not been raised. ORDER Entitlement to an initial evaluation in excess of 20 percent for right foot cold injury residuals and chronic onychomycosis of the toenails is denied. Entitlement to an initial evaluation in excess of 20 percent for left foot cold injury residuals and chronic onychomycosis of the toenails is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs