Citation Nr: 1328518 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 07-00 202A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for residuals of a cold injury to the left foot. 2. Entitlement to a disability rating in excess of 30 percent for residuals of a cold injury to the right foot. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. The Veteran's appeal was certified by the RO in Baltimore, Maryland; however, the Veteran apparently resides in North Carolina. All correspondence should be directed to the Veteran's current address in that state. The Veteran testified at a Central Office hearing in April 2009. A transcript is associated with the record. In July 2009, the appeal was remanded for additional development. In May 2011, the Board denied an initial disability rating in excess of 10 percent for bilateral hearing loss. That issue is no longer for consideration. The remaining issues were remanded for further development. The Virtual VA and VBMS folders have been reviewed. In September 2011, the Veteran submitted a claim for an increased evaluation for left ear hearing loss. It does not appear that this issue has been adjudicated by the Agency of Original Jurisdiction (AOJ) and the Board does not have jurisdiction over it. Therefore, it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran is currently receiving the maximum schedular rating for residuals of a cold injury to the left foot; and the disability picture does not require the assignment of an extraschedular rating. 2. The Veteran is currently receiving the maximum schedular rating for residuals of a cold injury to the right foot; and the disability picture does not require the assignment of an extraschedular rating. 3. The Veteran meets the schedular criteria for TDIU; however, the preponderance of the evidence is against finding that his service-connected disabilities are of sufficient severity to render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for residuals of a cold injury to the left foot, to include on an extraschedular basis, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.3, 4.7, 4.25, 4.26, 4.104, Diagnostic Code 7122 (2012). 2. The criteria for a disability rating in excess of 30 percent for residuals of a cold injury to the right foot, to include on an extraschedular basis, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.3, 4.7, 4.25, 4.26, 4.104, Diagnostic Code 7122. 3. The criteria for the assignment of a TDIU rating are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.16, 4.25, 4.26 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By correspondence dated in April 2004, March 2006, June 2008, October 2009 and May 2011, VA notified the Veteran of the information and evidence needed to substantiate and complete his claims, to include notice of what part of that evidence was to be provided by the claimant, and notice of what part VA will attempt to obtain. He was provided notice of the specific rating criteria and further advised of how VA assigns disability ratings and effective dates. The claims were most recently readjudicated in the June 2012 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains the Veteran's service treatment records and VA medical center records. The Veteran has not specifically identified additional evidence that needs to be obtained. The Veteran was provided numerous VA examinations throughout the course of this appeal and on review, these examinations contain necessary findings and are considered adequate for rating purposes. Additionally, the claims for increase were sent for extraschedular consideration and a detailed response was received from the Director, Compensation and Pension Service. The Board acknowledges that in the June 2010 VA examination report, the examiner recommended a social work assessment, as there were concerns about the Veteran's ability to manage his financial affairs in an appropriate fashion. It does not appear that this was accomplished. Nonetheless, the Board finds that a determination as to whether the Veteran can handle his personal finances is not relevant to the issues for consideration. At this time, and with regard to the current appeal, additional examinations or opinions are not warranted. The Veteran had the opportunity to present pertinent evidence and testimony in support of his claims. The Acting Veterans Law Judge's actions at the hearing, to include explaining what is necessary to substantiate the claims and identifying potential evidentiary deficits, supplement the VCAA and comply with any hearing-related duties. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Analysis Evaluations assigned for cold injury residuals of the feet In August 2002, the RO granted service connection for residuals of cold injuries for the feet. The right and left foot were each assigned a 20 percent evaluation from August 29, 2001. The Veteran disagreed with the assigned evaluations. In December 2003, the RO increased the evaluation for each foot to 30 percent, also effective from August 29, 2001. A statement of the case was furnished, but the Veteran did not submit a substantive appeal. In April 2004, the Veteran submitted a claim for a TDIU. The RO also considered this as a claim for increase in service-connected disabilities. In July 2004, the RO continued the 30 percent evaluations assigned for right and left foot cold injuries. The Veteran disagreed with the decision and subsequently perfected this appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The maximum schedular rating for cold injury residuals is 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7122. This is assigned when the affected parts have 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). Id. Note (1) to this section states to separately evaluate 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. Other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., should also be separately evaluated unless they are used to support an evaluation under Diagnostic Code 7122. Note (2) states that each affected part should be evaluated separately and combined in accordance with §§ 4.25 and 4.26. The Veteran underwent a VA cold injury examination in June 2004. At that time, he related various complaints in his feet, to include a pin and needle sensation and swelling and aching. The examiner provided detailed findings related to the musculoskeletal and neurologic examinations of the feet. He concluded that "[t]he feet in general overall appear completely normal to both observation and examination." On VA cold injury examination in October 2006, the Veteran reported various symptoms including that his great toes are mildly swollen in cold weather. He has tingling, burning sensation and pain. He takes various medications and will occasionally wear socks at night. Physical examination was essentially negative. Diagnosis was mild frostbite by history. A separate foot examination was provided in October 2006. He alleged discomfort in both feet and tingling, numbness and burning sensation. On physical examination, the Veteran walked briskly with normal gait and posture and without assistive devices. X-rays of the feet showed mild degenerative changes of the 1st interphalangeal joint bilaterally. The Veteran most recently underwent VA general medical and cold injury examinations in June 2010. The claims folder was reviewed. The Veteran reported cold sensitivity and decreased sensation. The examiner provided detailed physical examination findings and discussed pertinent diagnostic testing. The examiner opined that the residuals of service-connected cold injuries were unchanged from previous examinations. EMG testing in 2008 suggested diabetic neuropathy and the neurologist suggested possible peripheral vascular disease with diabetic or alcoholic neuropathy but no mention of cold injury connection to the neuropathy. There was vascular disease in the digits of both feet due to smoking. The degenerative joint disease in the bilateral toes was at least as likely as not related to the cold injuries. The examiner stated that physical examination showed normal range of motion of the feet, normal skin color and temperature, and the skin was free from blisters or eruptions. There was decreased sensation in the toes and feet, but he was not completely devoid of sensation. Reflexes were normal. Although he used a cane he was primarily weight bearing with a limp on the right and gait was otherwise normal. On review, the Veteran is currently receiving the maximum schedular rating available for each foot under the assigned diagnostic code for cold injuries. A higher schedular evaluation is simply not available under Diagnostic Code 7122. He has not suffered any amputations or other complications that warrant separate evaluations. While there is evidence of peripheral neuropathy, it is not shown to be related to his cold injuries. The Veteran's claim was referred for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1). A July 2011 statement from the Director, Compensation and Pension Service indicates that the claims folder was reviewed. Outpatient and examination findings were discussed and it was noted that there was no objective evidence from previous employers demonstrating that cold injuries residuals interfered with previous employment or currently prevented the Veteran from working. The Director stated as follows: Extra-schedular evaluations are assigned in cases where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. 38 C.F.R. § 3.321(b)(1). No unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical. The evidentiary record clearly demonstrates that the symptomatology consistently associated with the service-connected bilateral cold injury residuals are wholly contemplated by the criteria utilized to assign the current 30 percent evaluation for each foot. Thus, in the absence of a disability picture that is outside of the regular rating criteria, assignment of an extra- schedular consideration is prohibited. Entitlement to an extra-schedular evaluation for the service-connected residuals of cold injury of either foot is denied as there is clearly no unusual or exceptional disability pattern that renders application of the regular rating criteria impractical pursuant to 38 C.F.R. § 3.321(b)(1). The Compensation and Pension Service determined that an extraschedular evaluation was not warranted and the Board finds their analysis highly probative. The Board has considered the Veteran's contentions that his disability picture is not accurately reflected in the assigned ratings, but does not find his assertions sufficiently probative to outweigh the reasoned opinion as set forth. Considering all evidence of record, the Board finds that the assignment of an extraschedular rating is not needed to accord justice. The Board finds no basis for assigning staged ratings during the appeal period. See Hart. TDIU In July 2004, the RO denied entitlement to TDIU. The Veteran disagreed with the decision and subsequently perfected this appeal. The Veteran contends that he is unemployable due to service- connected disability. At the April 2009 hearing, his representative stated that he was last gainfully employed in December 2003 and was terminated due to tardiness, lateness, and missing days due to service-connected disabilities. The Veteran testified that he uses assistive devices. He reported that he had a hearing aid for the right ear, but lost it. He last worked in maintenance but cannot wear closed toe shoes. He testified that he "maybe" could do office work, but has never done it and cannot type. He stated that he cannot tolerate work boots or sneakers and has to wear special socks and open sandals. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Entitlement to a total compensation rating must be based solely on the impact of a veteran's service-connected disabilities on his ability to keep and maintain substantially gainful work. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The pertinent inquiry is whether a veteran's service- connected disabilities alone are of sufficient severity to produce unemployability, not whether a veteran is unemployable solely due to his/her service-connected disabilities. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); Pratt v. Derwinski, 3 Vet. App. 269, 272 (1992). The case law further provides that the question in a claim of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders is whether a veteran is capable of performing the physical and mental acts required by employment and not whether a veteran is, in fact, employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). The availability of employment in the job market, i.e., potential job openings, is not a factor for consideration in determining entitlement to a TDIU rating. See Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011) (Federal Circuit gives deference to the interpretation by VA's Adjudication Procedures Manual Rewrite M21-1MR, Part IV, Subpart ii, Chapter 2, Section F, 2-F-12, which indicates that the "availability of work" is irrelevant to a TDIU determination). The Veteran is currently service-connected for residuals of cold injury of left foot (30 percent); residuals of cold injury of right foot (30 percent); bilateral hearing loss (10 percent); and tinnitus (10 percent). Combined evaluation is 60 percent from August 29, 2001. In determining whether the Veteran meets the schedular criteria for a grant of TDIU, the Board notes that for the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. 38 C.F.R. § 4.16(a). The separate 30 percent evaluations for the lower extremity cold injuries combine to 60 percent when considering the bilateral factor. See 38 C.F.R. §§ 4.25 and 4.26 (collectively indicating that 30 percent combined with 30 percent is 51 percent, but when the 10% bilateral factor of 5.1 percent is added to the 51 percent, this totals 56.1 percent, which is then rounded up to 60 percent). As a consequence, he satisfies the schedular criteria under 38 C.F.R. § 4.16(a). In his April 2004 application for TDIU, the Veteran reported that he last worked in construction in December 2003. Prior to that, he was a maintenance superintendant for approximately 6 years. He reported that he left his last job because of disability, specifically, his left and right foot conditions. He reported one year of college and HVAC (heating, ventilation, and air conditioning) training. He stated that he could not stand for long periods of time, could not wear shoes for more than 3 hours and had constant pain in his feet. Information provided by his previous employer indicates that he was a siding installer. He worked 40 hours a week and last worked in December 2003. No concessions were made due to disability. The reason for termination was specified as "[q]uit showing up for work-gave no reason". The Veteran underwent a VA audiology examination in June 2004. He reported that the condition did not result in any time lost from work. On VA cold injury examination in June 2004, the Veteran reported that his foot discomfort did not prevent him from carrying out his activities of daily living or work-related responsibilities. On VA orthopedic examination in October 2006, the Veteran reported that he had not worked for the last 3 years. Following examination, the examiner stated that there was no evidence of adverse impact on activities of daily living or occupation. On VA audiology examination in October 2006, the Veteran's speech recognition scores were described as excellent. On his January 2007 VA Form 9, the Veteran reported that he cannot wear closed toe shoes without his feet blistering and it is hard for him to get employment in this condition. An October 2007 VA outpatient note indicates that the Veteran presented with a number of issues that seemed mostly related to lifestyle choices. He reported that he was unable to find employment due to his foot issues. The physician noted that he did not currently "see a major problem there," but would evaluate and request a consult. In a January 2010 application for TDIU, the Veteran reported that his disability affected full-time employment in April 2000, but that he last worked in January 2009. He again reported that he left his last job due to disability (cold injury residuals) and that he was unable to wear proper shoes due to swelling, pain and aches from his feet. Information received from his last employer shows that he worked construction labor from September 2008 to January 2009. He worked 40 hours a week and was terminated due to "lack of work". There was no indication of time lost or concession made due to disability. VA medical records show treatment for various disabilities. A January 2010 VA note indicates that the Veteran started walking with a standard cane 6 months prior, but this was self prescribed. An April 2010 VA note indicates that the Veteran was able to perform all activities of daily living independently and did not require any assistive devices for ambulation. The Veteran underwent extensive VA examination in June 2010. The VA audiology examiner stated that there were significant occupational effects because the Veteran had difficulty hearing and following instructions. General medical and cold injury examinations were also accomplished. At that time, the Veteran reported that he last worked in construction but was unable to tolerate steel toe boots. He reported that he worked for 4 months but had to take 2 weeks of sick leave, sometimes leaving work suddenly. The Veteran described himself as unemployed. The reason given for unemployment was "recession". Following a detailed examination and discussion of the evidence of record, the examiner noted that her background included 3 years in occupational health at a VA Medical Center and she was required to determine physical limitations and advise if potential employees were medically cleared for hiring. She felt competent to make the following statement: I do not see [the Veteran] as being 100% unemployable. He would not be a candidate for common labor positions although his background includes HVAC which I could see him doing at least part time as there is some sedentary time built into the duties. He could possibly work as a roofer since he did not mention problems with ladders and they sit as they nail shingles. The [V]eteran could operate a fork truck safely and again, this allows sitting most of the time. He would be medically eligible for positions with a minimum of retraining including clerical work, administrative work such as medical coding, file clerk, or any position that allows him to sit part of the time. The examiner provided extensive rationale for her opinion to include discussion of a possible psychiatric component to the Veteran's pain. She further noted: During this period (2007-2008), the [V]eteran failed to keep 2 Podiatry appointments despite notarized letters to his home. It would seem that if his pain was severe, he would have been eager to keep his appointment with a foot specialist. The positive urine drug screen and the avoidance of keeping his Podiatry appointments seem to reinforce a possible psychological factor. Most recently, the [V]eteran had a [urine drug screen] positive for cannabis and cocaine. Cocaine is a powerful vasoconstrictor and would increase pain in someone with documented vascular disease in the feet as it increased the ischemia. The [V]eteran has continued to smoke which also contributes to vasoconstriction. The use of illicit drugs would also have an effect on the [V]eteran's ability to work. On review, the preponderance of the evidence is against finding that the Veteran's service-connected disabilities are of such severity that he is unable to secure and follow a substantially gainful occupation. In making this determination, the Board finds the recent VA opinion highly probative. The examiner reviewed the claims folder and provided adequate rationale, to include consideration of medical evidence, employment history, and previous occupations and training. The record does not contain probative evidence to the contrary. The Board acknowledges the Veteran's statements regarding the severity of his cold injury residuals and the impact on his ability to obtain and maintain employment. The Veteran is competent to report his symptoms and claimed occupational difficulties. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that the Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). The Veteran's statements, however, are self-serving and inconsistent with the overall evidence of record. Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). For example, the information provided by his previous employers does not support his claim that he left employment due to his disabilities. There is no evidence that concessions or other accommodations were made due to disability. On the contrary, evidence shows that he was able to work full-time in construction as of 2009 and was only terminated because of a lack of available work. Objective findings on physical examinations do not suggest that his cold injuries interfere with the activities of daily living or cause significant occupational impairment. The Board acknowledges the June 2010 audiologist's statement regarding significant occupational effects, but finds this inconsistent with the audiometric findings and speech recognition scores shown on examination. The occupational impairment related to hearing loss and tinnitus is reflected in the current compensable evaluations assigned and the evidence does not establish that these disabilities alone, or in combination with the cold injury residuals, are sufficient to preclude substantially gainful employment. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER A disability rating in excess of 30 percent for residuals of a cold injury to the left foot is denied. A disability rating in excess of 30 percent for residuals of a cold injury to the right foot is denied. TDIU is denied. ____________________________________________ S. F. SYLVESTER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs