Citation Nr: 1325979 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 12-16 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection residuals of a cold injury to the lower legs. 2. Entitlement to a rating in excess of 10 percent disabling for residuals of a cold injury to the left foot. 3. Entitlement to a rating in excess of 10 percent disabling for residuals of a cold injury to the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from June 1949 to December 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In May 2013, after the issuance of the last supplemental statement of the case (SSOC), the Veteran's then representative submitted additional evidence in the form of treatise evidence related to clinical aspects of cold injuries, the submission of which was accompanied by a waiver of initial consideration by the agency of original jurisdiction (AOJ). 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). FINDINGS OF FACT 1. A disability of the lower legs has not been shown to have resulted from a cold injury sustained in service. 2. Resolving reasonable doubt in the Veteran's favor, the cold injury residuals of the Veteran's feet consist of pain, numbness, cold sensitivity, color changes and locally impaired sensation, bilaterally. CONCLUSIONS OF LAW 1. The Veteran does not have a disability of a lower extremity that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for an initial disability evaluation of 30 percent for residuals of cold injury to the left foot have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.103, 4.3 4.104, Diagnostic Code 7122 (2012). 3. The criteria for an initial disability evaluation of 30 percent for residuals of cold injury to the right foot have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.103, 4.3 4.104, Diagnostic Code 7122 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (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 v. Nicholson, 19 Vet. App. 473 (2006). At the outset, the Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. In this case, the Veteran's claims of service connection for residuals of cold injuries to the left and right foot were granted in April 2012, and he was assigned disability ratings and effective dates in that decision. As the increased rating matters currently before the Board stem from a disagreement with a downstream element, no additional notice is required with respect to those issue because the purpose that the notice is intended to serve has been fulfilled with respect to those claims. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Further, upon receipt of the Veteran's claim for service connection for residuals of cold injuries to the lower legs, the RO sent to him a letter dated in March 2012 wherein he was notified of what the evidence must show to establish entitlement to service connection for residuals of cold injuries to the lower legs, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The notice also included the criteria for assigning a disability rating and an effective date as required by Dingess, supra. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the March 2012 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his service connection claim. Thus, the Board is satisfied that the duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his service connection claim. At the outset, the Board notes that the Veteran's service treatment records (STRs) were among those thought to have been destroyed in a 1973 fire at National Personnel Records Center (NPRC). The agency of original jurisdiction (AOJ) made a Formal Finding on the Unavailability of the STRs, noting that all efforts to obtain the needed military information had been exhausted, and the records were not available. All available relevant evidence pertaining to the Veteran's claims has, however, been obtained. The evidence includes his VA treatment records, private medical evidence, VA examination reports, and lay statements in support of his claims. The Veteran did not elect to have a hearing in connection with his claims. The AOJ has also obtained a medical opinion in connection with the Veteran's claim. A review of the examination report shows that the VA examiner conducted thorough examination of Veteran and considered the Veteran's subjective complaints related to his alleged lower leg disabilities, as well as his indicated cold exposure in service. The Board is satisfied that the examination report, along with the private medical reports of record, contain sufficient evidence by which to evaluate the claims decided herein. Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Cox v. Nicholson, 20 Vet. App. 563 (2007). II. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is seeking service connection for a bilateral lower leg condition due to frostbite in service. He has asserted that in addition to suffering a cold injury to his feet in service, his lower legs were affected. The fact that the Veteran suffered a cold injury in service is not in dispute. Further, the evidence shows that the Veteran has variously been treated for a venous stasis ulcer on his right leg and venous insufficiency, and has been noted to have bilateral ankle osteoarthritis, possible below the knee thrombophlebitis, monofilament impairment extending to proximal calf, and subjective neuropathy. Accordingly, the question is one of nexus. See Davidson, supra. Concerning whether any diagnosed lower leg disability has resulted from the Veteran's in-service cold injury, the first evidence pertaining to the lower legs is dated in December 2006, at which time it was noted that the Veteran had presented for evaluation of a leg ulcer. A history of swelling and ulcers in the right leg, of unknown etiology, was noted. The private clinician suggested that it was a venous stasis type ulcer, but noted the Veteran's assertion that he had shrapnel in the lower leg. No left leg problems were indicated. Examination of the right leg showed an edematous leg, chronic stasis changes, and a large ulcer down the right lateral leg. Follow-up treatment notes indicated the presence of swelling and use of Unna boot and a surgical note dated in January 2007 stated that the Veteran had presented with venous insufficiency and a long-standing venous stasis ulcer in his right leg. It was noted that he had had recurrent ulcers for a number of years and chronic swelling in his right leg, but not his left. The Veteran denied a history of deep venous thrombosis or phlebitis. The clinician's assessment was ulcer secondary to venous insufficiency and possible arterial insufficiency. A magnetic resonance angiogram (MRA) was conducted in January 2007 that showed some areas of mild to moderate arterial stenosis. Reviewing the MRA results, the private clinician indicated that angioplasty was not necessary at that time and that the Veteran would go into an Unna boot. It was noted that if his ulcer did not heal, the vascular supply would be reconsidered. Follow-up visits revealed improvement of the Veteran's ulcer. A March 2007 treatment note states that the Veteran's ulcer had completely healed. There was no redness or swelling and the skin looked quite healthy. In January 2012, the Veteran filled out a protocol examination history for cold injuries, stating that he had sustained frostbite in service that affected his feet. No mention of the lower legs was made. A VA examination was conducted that same month. In a March 2012 dictated addendum, the examiner indicated that there was no evidence of cold injury residuals above the Veteran's ankles, bilaterally. The Veteran's claims folder was thereafter reviewed by anther VA clinician in April 2012 who indicated that the available information was insufficient to establish a relationship between the Veteran's cold exposure in service and his current venous insufficiency ulcers without resort to speculation. A report of general information dated that same month recorded a statement from someone who had discussed the April 2012 VA clinician's opinion with her and was in the room at the time that it was rendered, which statement indicated that the VA clinician had reviewed all available evidence but did not find any evidence to substantiate a diagnosis of bilateral below the knee thrombophlebitis. The statement noted that after reviewing all of the evidence, the VA clinician had agreed with the previous assessment that any lower leg disability was less likely than not caused by or a result of the Veteran's in-service cold injury, as there was insufficient evidence to establish suck a link without resorting to mere speculation. In July 2012, the Veteran submitted a statement from his private physician J.G., MD., who indicated that the Veteran had been under her care since 2009. Dr. J.G. stated that the Veteran had subjective complaints of neuropathy, cold sensitivity, and locally impaired sensation in his lower legs and feet since his in-service cold injury. Dr. J.G. further indicated that examination of the Veteran produced evidence of monofilament impairment, pedal surfaces extending to proximal calf, and stated that she felt "that his symptoms could be due to previous injury." Another VA cold injury examination was conducted in February 2013. Regarding whether the Veteran has any disability of the lower legs related to his in-service cold injury, the examiner noted that examination of the right foot and right lower leg revealed substantial chronic venous stasis skin changes associated with "woody" induration of the soft tissue of the right lower leg, related to chronic fluid sequestration in the soft tissues and hemosiderin pigmentation deposition, plus dermal scarring of the right lateral lower leg at the site of the healed venous stasis ulcer. The examiner determined that the chronic venous stasis changes were secondary to deep venous system pathology, most likely valvular incompetence within the deep venous system and associated incompetent perforating veins connecting with the superficial venous system of the left leg. The examiner went on to opine that the primary pathologic venous condition is related to valvular incompetence of the deep venous system, which is not caused by cold injury exposure. The examiner further opined that the noted sensory deficit to monofilament stimulation of the right lower leg and foot is most likely a manifestation of the chronic venous stasis changes and resulting subcutaneous/dermal trophic changes. In consideration of the above, the Board finds that the preponderance of the evidence is against a finding of service connection for residuals of a cold injury to the bilateral lower extremities. This is so because the probative evidence of record does not support a finding that the Veteran has a diagnosed disability of the right or left leg that has been linked to the cold injury sustained in service. In this regard, the Board acknowledges that Dr. J.G. stated that she felt that the Veteran's symptoms could be due to his previous cold injury. However, she provided no rationale for her belief in this regard. While there are no reasons or bases requirements imposed on a medical examiner, Ardison v. Brown, 6 Vet. App. 405, 407 (1994), the standards of adequacy for private and VA medical opinions are the same and to be adequate, an opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the Board finds the lack of any supportive reasoning renders Dr. J.G.'s inadequate for evaluation purposes. Turning to the VA examination reports, the Board finds probative the February 2013 VA examiner's conclusion that the Veteran's skin and sensory changes in his lower extremities are related to his venous insufficiency as opposed to his previous cold injury. In this regard, the Board notes the treatise evidence submitted by the Veteran's previous representative regarding the clinical aspects of cold injuries. Although the Veteran's representative argues that the VA examiner's conclusion is contradicted by the treatise evidence. The VA examiner did not, however, as alluded to by the Veteran's previous representative, state that a cold injury could never result in a venous injury or deficiency. Rather, the VA examiner set forth his opinion that the Veteran's valvular incompetence of the deep venous system was not related to his cold injury in service. Further, as to the Veteran's complaints of neuropathy, the Board notes that the Veteran did not report neuropathy symptoms to either VA examiner, nor did either examiner indicate the presence of neuropathy and although the Veteran indicated symptoms of tingling at the time of the cold injury, he denied tingling or pins and needles feeling on the VA protocol examination history report. While Dr. J. G. reported the Veteran's subjective complaints of neuropathy in his lower legs and stated that neuropathy had been found on examination, it does not appear that any testing was undertaken to determine the presence of neuropathy. Moreover, as stated above, Dr. J.G.'s opinion is inadequate to rely upon due its lack of stated reasoning, especially given the fact that the accompanying examination report does reveal objective evidence of neuropathy. Evidence against a finding of service connection for residuals of a cold injury to the lower legs also includes the private medical evidence dated in 2007. Notably, none of the records related to treatment of the Veteran's right leg venous stasis ulcer suggest that that ulcer was in any way related to the Veteran's previous cold injury. Indeed, the Veteran's private clinician notes that the ulcer was a result of venous insufficiency. Similarly, the evidence contains no suggestion that the venous insufficiency is related to the previous cold injury. The treatment records also contain no complaints or evidence of neuropathy. Lastly, although there is a diagnosis of bilateral ankle osteoarthritis, there is simply no evidence to suggest that the Veteran's arthritis is in any way related to his previous cold injury. No examiner, private or VA, has linked the Veteran's arthritis to his cold injury. Moreover, arthritis did not manifest until many years after the in-service cold exposure. In consideration of the evidence of record, the Board finds that the Veteran does not have a disability of the right or left leg as result of his in-service cold injury. The VA examination report detailed above is highly probative evidence for deciding the claim, and is, indeed, uncontradicted by any other probative evidence of record, as Dr. J.G.'s opinion has been deemed inadequate for evaluation purposes. The examiner reviewed the claims folder and the opinion is based on all of the evidence of record, which, in the examiner's opinion as a medical professional does not support a finding of service connection. To the extent that the Veteran believes that his right or left leg disability has resulted from his cold injury in service, the etiology of dysfunctions and disorders is generally a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to make such a conclusion, especially in light of the VA examiner's conclusions to the contrary. See Jandreau, supra. For the foregoing reasons, the Board finds that the residuals of a cold injury to the lower legs must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection for a right ankle and/or right leg disability under the theory advanced by the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2012). III. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's hypertension, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson, supra. Further, "[w]here there is a question as to which of two evaluations shall be applied, 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 (2012). The Veteran's cold injury residuals to his left and right foot have each been evaluated as 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7122. Under DC 7122, cold injury residuals of arthralgia or other pain, numbness, or cold sensitivity are rated as 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 as 20 percent disabling; and 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 as 30 percent disabling. 38 C.F.R. § 4.104, DC 7122 (2012). "Note (1)" 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 DCs, and 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 DC 7122. Id. at Note 1. The Veteran was afforded a VA examination in January 2012, which included a protocol examination history for cold injuries that was filled out by the Veteran. The Veteran reported experiencing numbness, weakness of the feet, cold sensitivity, and decreased los of sensation. The examiner noted the Veteran's complaints of constant bilateral foot numbness, mostly in the arch of the right foot, and sensitivity to cold weather and indicated the presence of bilateral foot pain, numbness, burning and cold sensitivity. The examiner also indicated that the x-rays revealed evidence of right and left foot osteoarthritis; however, the x-ray report itself showed only minimal degenerative changes at the right talonavicular joint. In July 2012, the Veteran submitted a statement from his private physician, J.G., MD, who stated that the Veteran had been under her care since 2009. Dr. J. G. reported the Veteran's complaints of subjective neuropathy, cold sensitivity, and locally impaired sensation, and her own findings of monofilament impairment at the pedal surfaces extending to proximal calf. The accompanying treatment record also reveals the Veteran's complaints of cold exposure in service, at which time he discoloration. The Veteran reported continued coloration changes and tingling and neuropathy since that time. Dr. J. G. noted that neuropathy had also been found on examination. Another VA examination was conducted in February 2013. Upon examination of the Veteran, the examiner checked the boxes on the examination report indicating that residuals of the Veteran's cold injury included arthralgia or other pain, cold sensitivity, color changes, numbness, and locally impaired sensation to both feet. X-rays revealed no evidence of left or right foot osteoarthritis, osteoporosis, or subarticular punched out lesions. In discussing his finding, the VA examiner stated that examination of the Veteran's feet and lower legs demonstrated substantial chronic venous stasis skin changes associated with "woody" induration of the soft tissues of the lower legs, which changes were secondary to deep venous system pathology, most likely valvular incompetence within the deep venous system. Physical examination of the Veteran Upon review of this evidence, the Board finds that, when reasonable doubt is resolved in favor of the Veteran, 30 percent ratings are warranted for the Veteran's cold injury residuals for each foot. Although there is some suggestion that the Veteran's color changes are limited to his legs, and not his feet, and may be attributable to his venous condition, which is not due to his in-service cold injury, the Veteran has reported continued color changes in his feet since his injury and the February 2013 VA examiner checked the box indicating right and left foot color changes as a result of his in-service cold injury. Similarly, the examiner indicated locally impaired sensation of the right and left foot and the Veteran's private physician noted reduced dorsalis pedal pulse. While Dr. J. G.'s record is dated in 2012, she indicated having treated the Veteran since 2009 and did not state that these symptoms were new or had developed during the pendency of her treatment of the Veteran. Although color changes and locally impaired sensation were not noted on examination in January 2012, a review of that examination report suggests that it is incomplete, as the examiner checked no boxes for the left foot, but indicated the presence of left foot cold injury residuals in a subsequent section. Thus, while the evidence is not unequivocal, after reviewing all the evidence on file, the Board finds that when reasonable doubt is resolved in favor of the Veteran, the evidence suggests that in addition to arthralgia or other pain, numbness, and cold sensitivity, the Veteran's in-service cold injury to the feet has resulted also in color changes and locally impaired sensation, bilaterally, such that a 30 percent disability rating is warranted for each foot as of the date of the Veteran's award of service connection. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Regarding the Veteran's complaints of neuropathy, while Dr. J. G. reported the Veteran's subjective complaints of neuropathy in his lower legs and stated that neuropathy had been found on examination, it does not appear that any testing was undertaken to determine the presence of neuropathy. Further, Dr. J. G. provided no support for her opinion that the Veteran's symptoms could be due to his previous injury and as such, her opinion is not adequate to support a finding of neuropathy associated with the Veteran's cold injury. See Stefl, supra. Further, the Veteran did not report neuropathy symptoms to either VA examiner, nor did either examiner indicate the presence of neuropathy and although he indicated symptoms of tingling at the time of the cold injury, he denied tingling or pins and needles feeling on the VA protocol examination history report. As such, the Board finds that the evidence of record does not support a separate rating for neuropathy as a residual of the Veteran's cold injury. ORDER Entitlement to service connection for residuals of a cold injury to the lower legs is denied. Entitlement to an initial disability rating of 30 percent for service-connected for residuals of cold injury to the left foot is granted as of November 17, 2011, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating of 30 percent for service-connected for residuals of cold injury to the right foot is granted as of November 17, 2011, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs