Citation Nr: 1341692 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 07-23 635 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to a rating in excess of 30 percent for the service-connected cold injury residuals of the left hand. 2. Entitlement to a rating in excess of 30 percent for the service-connected cold injury residuals of the right hand. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to November 1971. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the RO that continued a 20 percent evaluation for cold injury residuals of the left hand. The Veteran disagreed and subsequently perfected this appeal. In October 2009, the RO increased the evaluation for the service-connected cold injury residuals of the left hand to 30 percent, effective on July 12, 2006. In February 2011 and July 2013, the Board remanded the claim for increase for further development. In July 2013, the Board also granted service connection for bilateral hearing loss and tinnitus, and these issues are no longer for consideration. In a July 2013 Supplemental Statement of the Case, the Appeals Management Center (AMC) listed the issues as an extraschedular evaluation for the service-connected cold injury residuals right hand and the cold injury residuals left hand. The Veteran responded to the Supplemental Statement of the Case in August 2013 and set forth contentions pertaining to his right hand. The issue of an increased evaluation for the service-connected cold injury residuals of the right hand was not perfected on appeal in accordance with 38 C.F.R. § 20.200 (2012). Nonetheless, considering the AMC's action and the Veteran's response, the Board has listed the issues as stated on the first page of this document. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (by treating the matter as if it were part of the timely filed Substantive Appeal, VA waived any objections it might have had to the timeliness of filing). In September 2013, the Board again remanded the claims for increased ratings for the service-connected cold injury residuals of the right and left hands. The case has since returned to the Board for the purpose of appellate disposition. For the following reasons, the RO is found to have complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal was processed using the Virtual VA and VBMS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The service-connected cold injury residuals of the left and right hands are shown to have been manifested by bilateral hand numbness, burning pain, and hypersensitivity to cold; other separately ratable disabilities associated with the cold injury residuals have not been shown. CONCLUSIONS OF LAW 1. The criteria for the assignment of a rating in excess of 30 percent for the service-connected cold injury residuals of the left hand have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.104 including Diagnostic Code 7122. 2. The criteria for the assignment of a rating in excess of 30 percent for the service-connected cold injury residuals of the right hand have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.104 including Diagnostic Code 7122. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In an August 2006 pre-rating letter, the RO notified the Veteran of the evidence needed to substantiate the claim for increase. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The Veteran has substantiated his status as a veteran. He was notified of all other elements of Dingess in the August 2006 letter. The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. Here, VA obtained the Veteran's service treatment records and all of the identified post-service VA treatment records. Pursuant to the Board's September 2013 remand, VA treatment records dated through August 2013 have been obtained. The Veteran was also afforded VA examinations in October 2006, April 2009, and October 2013 to evaluate the severity of the service-connected right and left cold injury residuals. The October 2013 examiner provided the requested findings in compliance with the remand instructions in this regard as well. As these examinations were based on review of the Veteran's symptoms and complaints and discussed his right and left hand cold injury residuals in relation to the pertinent rating criteria, they are adequate for adjudication purposes. Finally, pursuant to the Board's September 2013 remand, in the October 2013 Supplemental Statement of the Case, the AMC addressed whether referral to the Director, Compensation Service for extraschedular consideration was warranted. Hence, the Board finds that there has been substantial compliance with the September 2013 remand instructions. Stegall, 11 Vet. App. at 271. For these reasons, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Analysis The Veteran contends that he is entitled to increased evaluations for his service-connected cold injury residuals of the left and hands, as he believes that these disabilities have increased in severity. Historically, the RO granted service connection for cold injury residuals of both hands in an April 1994 rating decision. A single no percent rating was assigned beginning on August 27, 1973. In a November 1997 rating decision, the RO awarded a single 30 percent rating for both hands effective on June 9, 1997. In a December 2001 rating decision, the RO awarded separate 30 and 20 percent ratings for the right and left hand, respectively, effective on August 7, 2000. The Veteran filed the instant claim for increase in July 2006, and appeals a November 2006 rating decision continuing the 20 percent rating for the left hand. In October 2009, the RO increased the evaluation for the service-connected cold injury residuals of the left hand to 30 percent, effective on July 12, 2006. The service-connected cold injury residuals are rated under 38 C.F.R. § 4.104, Diagnostic Code 7122. Diagnostic Code 7122 provides that 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 20 percent disabling. A maximum 30 percent rating is assigned when there is arthralgia or other pain, numbness or cold sensitivity plus 2 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). A note to Diagnostic Code 7122 provides that amputations of the fingers or toes, complications such as squamous cell carcinoma at the site of a cold injury scar, or peripheral neuropathy are to be separately evaluated under other diagnostic codes. Also, other disabilities that have been diagnosed as the residual effect of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., are to be separately evaluated unless they are used to support an evaluation under Diagnostic Code 7122. On VA examination in October 2006, the Veteran reported that, while his right hand bothered him more than the left, over past few years, he had progressive worsening of left hand symptoms. He indicated that he suffered from intermittent numbness of the fingers. He noted that his symptoms fluctuated and worsened with fatigue or stress. He denied burning pain, weakness, stiffness of the fingers or decreased grip. He indicated that he mostly had problems with coordination, such as difficulty with dialing the numbers on a phone. He continued to have sensitivity in the hand to the cold. There was no skin breakdown or ulceration. Other symptoms included mild tingling, moderate weakness, and mild loss of sensation. The Veteran indicated that he currently worked in highway and road repair. Objectively, a reflex and sensory examination yielded normal findings. The range of motion of the fingers was normal. The examiner indicated that there were hand tremors present. The examiner diagnosed frostbite injury of the left hand. He determined that the disability caused no significant effects on the Veteran's employment and mild effects on daily activities such as chores, feeding and bathing. A January 2008 VA outpatient treatment report showed that the Veteran presented with a history of cold injury residuals of the hand. He reported that his left hand had worsened over the past 2 years. The examiner observed a tremor, worse on the right. A history of frostbite was indicated. On VA examination in April 2009, the Veteran complained of having constant left hand burning pain and cramping exacerbated by cold weather. He reported that the disability impacted his work functioning in that he could not grip and grasp tools strongly or tightly. He reported that he had dropped many objects such as cups and tools. He added that he had given up being a barber several years earlier because of loss of motor function of the left hand. With respect to work, the Veteran indicated that he had worked in highway maintenance for 30 years and occasionally cleared roads in the winter. The treatment for the hands included keeping them as warm as possible. The examiner noted that there was a history of Raynaud's phenomenon of the digits of the right and left upper extremities. The attacks lasted 5 to 15 minutes at a time and occurred less than once a week. Symptoms during the attacks included color changes, pain, paresthesias and numbness. The attacks were precipitated by exposure to cold, temperature changes, and emotional upset. The Veteran also reported having joint pain in the fingers and fingertips, which occurred whenever his hands were not kept warm. He also endorsed moderate tingling, numbness, swelling, and muscle cramps after use. The examiner also noted that there was a history of moderate loss of sensation in the hands. Objectively, a reflex examination yielded normal findings. There was decreased vibration, light touch and pain sensation to dermatomes C6, C7, and C8 in both hands. A muscle function examination was within normal limits. The examiner indicated that there was Raynaud's phenomenon involving the right and left upper extremity digits. While the joints of the hand were involved, there was no pain on manipulation of the joints of any of the affected areas. Moderate edema was present in both hands. There was no muscle atrophy, but the Veteran had a tremor that was very noticeable. The X-ray studies of both hands demonstrated very mild degenerative change at the interphalangeal joint of the thumb and the first carpometacarpal joint on the right and minimal degenerative change at the interphalangeal joint of the thumb on the left. The examiner indicated that the Veteran had been employed for over 20 years in road maintenance and had not missed any time from work during the past year due to the disability. Diagnoses of cold weather injuries and degenerative arthritis of both hands were assigned. The examiner determined that the disability impacted occupational functioning in that the Veteran had decreased manual dexterity, lack of stamina, decreased strength of the upper extremities and pain. He also found that the disability caused mild to moderate impact on activities of daily living including chores and sports. On VA treatment in August 2010, the Veteran reported that his problems with hand tremors had been getting worse over time. He reported a family history of essential tremors and noted that it caused issues with writing. Neurologically, the examiner indicated that cranial nerves 2-12 were grossly normal. A tremor was noted at rest. There was normal muscle strength in the upper extremities. In September 2010, the Veteran indicated that he still experienced tremors in both hands and that the prescribed medication was not improving his tremors. On October 2010 VA neurology consultation, the Veteran reported that, over the years, his tremor had worsened. He had difficulty writing or feeding himself due to tremor, although the tremor did fluctuate at times in the day and he had little problems at some points in the day. He indicated a family history of tremor. Objectively, motor and sensory examination of the cranial nerves was within normal limits. A motor and reflex examination of the upper extremities was normal. There was a mild tremor of the outstretched hands or when moving the finger to the nose. The examiner diagnosed essential tremor. On VA treatment in March 2011, the Veteran reported having had no improvement whatsoever with diazepam for his tremor. It involved mostly his right hand as well as his face and voice. He reported that he was unable to feed himself using that hand and learned to use the left for that purpose. He also had difficulties with writing and reported that his symptoms worsened during stressful situations. On neurological examination, there was a fine tremor of outstretched upper extremities, particularly on the right. Strength, sensitivity and coordination were normal. A diagnosis of essential tremor was assigned. An April 2012 VA outpatient treatment report noted that the Veteran indicated that his hand tremor was stable. He reported that he had retired now and did not think his tremor affected him much, particularly because it was much less prominent in his left hand, which he used to drink or hold things tight. He woke up 2-3 times per night with his hands bothering him and feeling numb. When this occurred, his symptoms were relieved by rubbing his hands. Objectively, there was a fine tremor of outstretched upper extremities, particularly the right. The trapezius and sternocleidomastoid had normal tone and strength. Strength was 5/5 to proximal and distal muscle groups in upper and lower extremities. There was normal tone, and the reflexes were hypoactive diffusely. Finger tapping, fist opening, and leg tapping were unremarkable. Sensitivity was intact to all modalities with no extinction. Coordination examination revealed mild intention tremor on finger to nose, and normal rapid alternating. An impression of essential tremor was indicated. An April 2013 VA treatment report noted that the Veteran's tremor was not bothering him as much since he had retired. It bothered him when doing monthly bills or during periods of stress. Sleep was interrupted by hand numbness. After physical examination, the examiner indicated that he suspected carpal tunnel and a developed mild neuropathy. An October 2013 VA outpatient treatment report reflected that the Veteran's tremor remained stable. It was most bothersome in the right hand. It limited his writing and working with tools. He had learned to eat with the left hand. He noted that he got pain and tingling in his hands, mainly while sleeping. These symptoms went into his fingers and were worse when he was working, but still woke him up twice per night. On VA examination in October 2013, the Veteran reported having a history of frostbite in both hands, second degree, in 1970, and noticing these symptoms ever since then, being worse in the winter if he was outside. He had not sought care for this condition since the last rating. Current symptoms included pain and numbness in his hands from the frostbite. He rated the pain a 5 or 6 on a scale to 10. The pain and numbness were in a glove distribution and woke him up 3 times at night. The pain also intermittently occurred 6 times per day and 2-3 times per night, while the numbness was intermittent and occurred more often than the pain. The pain and the numbness had no aggravating factors and rubbing his hands helped somewhat; nothing else helped. He described the pain as a burning stabbing pain. He indicated that he was a registered barber, but had not been able to cut hair for years because he had trouble with handling the tools. He also had a benign familial tremor and reported that it was a combination of the tremor (inherited) and the pain and numbness that made it hard to be a barber. He had to learn to eat and do other things with his left hand because of the tremor. He had not tried any medication for this condition of hand numbness and tingling because he tried to limit the number of medications he was on. With respect to each hand, the Veteran endorsed numbness, cold sensitivity, color changes, hyperhidrosis, locally impaired sensation and nail abnormalities. He indicated that he felt a pins and needles sensation and decreased sensation. Also, he noted that hands got cold easily and that he had to wear very heavy gloves so as not to let his fingers get too cold again. He reported that his hands got red, but sometimes pale in the middle of the night and in the afternoon; this color change was usually associated with pain. Excessive sweating occurred during the day regardless of activity, and the nails were discolored in the day and when he woke up at night, but not necessarily related to pain. The X-ray studies revealed minimal to moderate interphalangeal degenerative arthritis and minimal degenerative arthritis at the base of the thumb. The examiner diagnosed osteoarthritis of both hands. The Veteran reported that he was to receive wrist braces for use at night for possible carpal tunnel, although no EMG studies had been done yet. The examiner indicated that range of motion of the fingers was normal, and there was no tenderness to palpation of fingers, which did appear slightly swollen. The skin was normal in color and temperature. The examiner diagnosed bilateral hand intermittent pain, hypersensitivity to cold and numbness due to cold weather injury, bilateral finger mild to moderate degenerative joint disease, and essential tremor of the hands not due to cold weather injury. The examiner also noted that the Veteran's distal sensory peripheral neuropathy (feet), diagnosed in 2012, was not due to cold weather injury. The examiner also determined that it was at least as likely as not that the Veteran's hand degenerative joint disease was due to normal aging and not aggravated or caused by prior frostbite, because this degree of degenerative joint disease was common in many 65 year old patients regardless of occupation or prior cold weather injury. The examiner concluded that overall, the symptoms of bilateral hand numbness, burning pain, hypersensitivity to cold are at least as likely as not mainly secondary to prior cold weather injury (as reported by the Veteran that the symptoms began after the cold weather exposure in 1970) and that the symptoms were not worsening. With respect to functional impact on work, the examiner noted that, as a result of the residual cold weather injury, the Veteran could not hold his barber tools, found it hard to write and do woodworking, and could not do things that require small tools. He was able to do activities of daily living and mow the yard. He was most limited by this condition regarding fine motor activity. In this case, the Veteran is in receipt of the maximum 30 percent rating provided under Diagnostic Code 7122 for cold injury residuals. Thus, no higher ratings are available under this code. The Board also notes that there are no separately ratable disabilities associated with the service-connected cold injury residuals. While he has degenerative arthritis of the hands and peripheral neuropathy, the October 2013 VA examiner specifically indicated that these disease processes were not due to the service-connected cold injury residuals. To the extent that the Veteran also experiences significant impairment related to his hand tremor, the record shows that the tremor has familial origin and is not due to the cold injury residuals. The Board as also considered whether the Veteran is entitled to a separate rating for Raynaud's phenomenon; however, given that the symptoms of pain, parethesias, numbness, and color changes are used to support the assignment of a 30 percent rating for each upper extremity under Diagnostic Code 7122, a separate rating for Raynaud's phenomenon is not assignable for the same manifestations. Moreover, given that the April 2009 VA examiner reported that the Raynaud's phenomenon attacks lasted 5 to 15 minutes at a time and occurred less than once a week, higher ratings under Diagnostic Code 7117 for the Veteran's cold injury residuals are not warranted. See 38 C.F.R. § 4.104, Diagnostic Code 7117. The Board has also considered other potentially applicable diagnostic codes; however, the Veteran's service-connected cold injury residuals of the left and right hand are not shown any other factor that would warrant evaluation of the disability under any other provisions of the rating schedule. For all the foregoing reasons, the Board finds that ratings in excess of 30 percent for the Veteran's service-connected cold injury residuals of the left and right hands are not warranted. The determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the service-connected cold injury residuals of the left hand of the right and left hands are exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). The Board finds that the rating criteria used to evaluate the service-connected cold injury residuals of the left hand of the right and left hands reasonably describe his disability level and symptomatology. The rating criteria address his symptoms such as color changes, cold sensitivity and impaired sensation. While his hand disability certainly causes difficulty with tasks such as writing and grasping tools and have impacted the Veteran's ability to be a barber, the assigned evaluations contemplate the overall effect of all of his symptomatology on his occupational and daily life functioning. In addition, the Veteran is limited by his unrelated hand tremor, for which service connection is not in effect and thus is not for consideration in determining whether an extraschedular rating is warranted. There is nothing in the record to distinguish his case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. Moreover, the schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disabilities. 38 C.F.R. § 4.1. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). In adjudicating the claims for a higher rating, the Board has considered the applicability of the benefit-of-the-doubt doctrine. In this case, the preponderance of the evidence is against assignment of any higher rating for the service-connected cold injury residuals of the right and left hands. 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). ORDER An increased rating in excess of 30 percent for the service-connected cold injury residuals of the left hand is denied. An increased rating in excess of 30 percent for the service-connected cold injury residuals of the right hand is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs