Citation Nr: 1330827 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 07-24 958 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for service-connected residuals of frostbite, left flank. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The Veteran served on active duty from November 1978 to December 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2011, the Board denied the Veteran's entitlement to a compensable initial rating for donor scar of the left thigh. The Board granted a separate 10 percent rating for pain of the donor scar of the left thigh. At that time, the Board also remanded the claim for an initial evaluation in excess of 20 percent for service-connected frostbite of the left flank to the Appeals Management Center (AMC) for additional development. Upon reviewing the development since May 2011, the Board finds there has been substantial compliance with its remand instructions with respect to the Veteran's claim. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has stated that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall v. West, 11 Vet. App. 268 (1998) violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The AMC was ordered by the Board to obtain additional medical evidence with respect to the Veteran's claimed disorder, and it has done so. Specifically, the AMC was asked to obtain an examination of the Veteran, which was performed. The results were returned to the AMC which, in turn, issued a supplemental statement of the case in response to the information obtained. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of the Board's remand instructions. See Stegall, 11 Vet. App. at 271 (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim with respect to the issue now on appeal based on the evidence that is of record. In the May 2011 decision, the Board referred to the RO for appropriate action a claim for an increased rating for the residuals of frostbite of the left buttock. It does not appear that the claim has been addressed and it is again referred to the RO. FINDING OF FACT Since the award of service connection, the Veteran's cold injury residuals of the left flank have been manifested by pain or numbness, locally impaired sensation, tissue loss, and minute color changes. CONCLUSION OF LAW The schedular criteria for an initial 30 percent disability evaluation, but no higher, for service-connected residuals of frostbite of the left flank have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.012, 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.104, Diagnostic Code 7122 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that the AOJ has substantially satisfied the duties to notify and assist as required by the VCAA. In this matter, the appeal arises from disagreement with the initial evaluation following the grant of service connection. The Court has held that were the underlying claim for service connection has been granted and there is disagreement as to downstream questions (such as the effective date or the disability rating assigned), the claim has been substantiated and there is no prejudice due to inadequate notice. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for the Federal Circuit has also held that once the underlying service connection claim is granted there is no duty to provide notice under 38 U.S.C.A. § 5103(a). Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Therefore, further notification of how to substantiate the claim is not necessary. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains his service treatment records, as well as post-service reports of VA treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183. II. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2013) requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 (2013) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 (2013) provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the evaluation of a service-connected disability requires a review of the Veteran's medical history with regard to that disorder, the Court has held that, where 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. Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2. With respect to the issue before the Board, the appeal stems from the Veteran's disagreement with an evaluation assigned in connection with the original grant of service connection, and the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). Under the rating criteria for evaluation of residuals of cold injuries, when there are cold injury residuals with pain, numbness, cold sensitivity, or arthralgia, a 10 percent disability evaluation is warranted. When there are cold injury residuals with 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 20 percent disability evaluation is warranted. When there are cold injury residuals with pain, numbness, cold sensitivity, or arthralgia 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) of affected parts, a 30 percent disability evaluation is warranted. 38 C.F.R. § 4.104, Diagnostic Code 7122 (2013). Note 2 directs VA to evaluate each affected part separately and combine the ratings in accordance with 38 C.F.R. §§ 4.25 and 4.26. Disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, et cetera, should be separately evaluated unless they are used to support an evaluation under Diagnostic Code 7122. Id. It was also noted that arthralgia is but one type of pain that will satisfy the evaluation criterion. 63 Fed. Reg. 37779 (July 14, 1998). III. Facts and Analysis The evidence shows that the Veteran was on a U2 flying mission in September 1996 when his cooling vest (that was worn over a flight suit) malfunctioned. As a result of this malfunctioning, a portion of the left flank "froze"-literally the tissue of the flank was frozen. He landed and he was treated for nearly two years because of the injury. This treatment included debridement, skin grafting, and tissue expansion. The Veteran recovered sufficiently and he remained on active duty until separation from service in December 2004. He subsequently applied for VA compensation benefits. In response to his claim for benefits with respect to the injury of the left flank, the Veteran underwent a VA examination in February 2006. Prior to the actual examination, he told the examiner that he was experiencing chronic, constant itching along with parasthesias. The Veteran further complained of pain over the paraspinal muscles of the left lower back and tenderness in the area when someone else touched or bumped into the injured area. However, he did admit that he did not have any functional limitations as a result of his frostbite injury to the left flank. When the area was examined, the examiner noted scarring on the left flank. In other words, the color or texture of the skin on the left flank where the Veteran experienced frostbite was different in color and texture of the skin surrounding the injured area. The examiner reported that the area was 23 centimeters long with mild depression and adherence. The scar was found to be nondisfiguring, nontender, well nourished and well healed. It was further noted that when the muscles in the area of the frostbite residuals were used, pain and grimacing was noted. However, there was no redness or swelling of the muscles and no spasms. Nevertheless, there was tenderness in the area. A second medical examination of the area was accomplished in June 2011. This examination was conducted pursuant to the Board's May 2011 decision. The examiner reviewed the claims file prior to the examination and then examined the area surrounding the left flank where the Veteran suffered the cold injury. The examiner indicated that the skin at the area of the left flank was "white or pale." The skin was noted to be thin and fragile, and the texture was labeled as "rough." The examiner further reported that there was numbness and dysesthesia with hypersensitivity to pressure and minor trauma. There are no other medical treatment records or examination reports contained in the claims folder. Instead there are the statements by the Veteran where he has described pain, discomfort, discoloration, and area sensitivity. The Veteran's assertions and statements regarding his disability have remained constant and uncontradicted by medical evidence. The Board notes that he is competent to report on that which he has personal knowledge, i.e., what comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds the Veteran's statements credible and believable. In applying the rating criteria to the evidence, the Board finds that there is some ambiguity. The Board concludes that the totality of the evidence in the file appears to be at least in approximate balance. As the Board is unable to conclude that the preponderance of the evidence is against the claim, the claim may not be denied. The record does suggest that there has been some type of color change of the left flank affected area along with impaired sensation. Moreover, there has been minor tissue loss along with pain, tenderness, and itching. Therefore, it is the conclusion of the Board that the evidence supports an evaluation of 30 percent since the effective date of the award of service connection for residuals of frostbite of the left flank. In this regard, the Board observes that 30 percent is the maximum schedular rating available under this Diagnostic Code 7122, which specifically addresses cold injury residuals. Furthermore, the Board observes that no other potentially applicable diagnostic code provides for a higher evaluation based on the evidence of record. In sum, an initial rating in excess of 20 percent for service-connected residuals of frostbite, left flank, is warranted-to 30 percent but no higher. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against an even higher initial rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). IV. Extraschedular Evaluation The Board has also considered whether the Veteran is entitled to an extraschedular evaluation for his residuals of frostbite of the left flank. Ordinarily, the VA Rating 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) (2013). 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 an appellant is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant'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 claimant'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 evaluation for the frostbite residuals of the left flank is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule for cold injury residuals shows that the rating criteria reasonably describes his disability level and symptomatology. Accordingly, there is no basis for consideration of an extraschedular rating here. In short, there is nothing in the record to indicate that this service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). 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. ORDER An initial evaluation of 30 percent, but no higher, for residuals of frost bite, left flank, is granted, subject to the regulations governing disbursement of monetary benefits. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs