Citation Nr: 1522547 Decision Date: 05/28/15 Archive Date: 06/11/15 DOCKET NO. 13-05 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for of Raynaud's syndrome, residuals of cold injury, right hand. 2. Entitlement to an initial rating in excess of 10 percent for of Raynaud's syndrome, residuals of cold injury, left hand. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from August 1980 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi which granted service connection for Raynaud's syndrome, bilateral hands and assigned a noncompensable (0 percent) rating effective August 5, 2008. The Veteran disagreed with the rating assigned and in a December 2012 rating decision, the Veteran was granted a 10 percent rating effective September 1, 2006. As this increase does not constitute a complete grant of benefits, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at video conference hearing before the Board in March 2015. The issues of entitlement to service connection for a cyst of the left knee, entitlement to an increased rating for a lumbar spine disability and migraine headaches, and entitlement to service connection for depression secondary to service connected disabilities being referred have been raised by the record in a March 2015 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDINGS OF FACT 1. The Veteran Raynaud's syndrome, residuals of cold injury, right hand is manifested by cold sensitivity plus locally impaired sensation, but he is not shown to have tissue loss, nail abnormalities, color changes, hyperhidrosis, or x-ray abnormalities as a result of his cold injury; he is also not shown to have characteristic attacks occurring daily. 2. The Veteran's Raynaud's syndrome, residuals of cold injury, left hand is manifested by cold sensitivity plus locally impaired sensation, but he is not shown to have tissue loss, nail abnormalities, color changes, hyperhidrosis, or x-ray abnormalities as a result of his cold injury; he is also not shown to have characteristic attacks occurring daily. CONCLUSIONS OF LAW 1. Criteria for a rating of 20 percent for Raynaud's syndrome, residuals of cold injury, right hand are met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.27, 4.104, Diagnostic Codes (DC) 7117-7122 (2014). 2. Criteria for a rating of 20 percent for Raynaud's syndrome, residuals of cold injury, left hand are met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.27, 4.104, DCs 7117-7122 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided. Additionally, neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, 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). Service treatment records, VA treatment records, and private treatment records have been obtained. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2015. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2015 Board hearing, the Veteran was assisted at the hearing by an accredited representative; that representative and the VLJ asked questions to ascertain the severity of the Veteran's Raynaud's syndrome, residuals of cold injuries of the bilateral hands. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating. Neither the representative, nor the Veteran, has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file), and from a review of the examination reports it is clear that the VA examiners had a full and accurate knowledge of the Veteran's disability and contentions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that VA has met its obligation to provide an adequate examination. Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Rating For historical purposes, in an August 2011 rating decision, the Veteran was granted service connection for Raynaud's syndrome of the bilateral hands and assigned a noncompensable (0 percent) rating under DC 7117, effective August 5, 2008. In a December 2012 rating decision, the Veteran's disability ratings assigned for Raynaud syndrome, residuals of cold injury of the right and left hand was increased to 10 percent under DCs 7117-7122, effective September 1, 2006. The Veteran disagreed with the rating assigned. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's Raynaud's syndrome, cold injury residuals of the bilateral hands, is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7117-7122 [Raynaud's syndrome - cold injury residuals]. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. The Board has considered whether any other diagnostic codes are more appropriate, but the assigned diagnostic codes specifically address the disabilities in question. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate and the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under DCs 7117-7122. Under Diagnostic Code 7117, a 10 percent rating is assigned for Raynaud's syndrome with characteristic attacks occurring 1 to 3 times per week. A 20 percent rating is assigned for Raynaud's syndrome with characteristic attacks occurring 4 to 6 times a week. A 40 percent rating is assigned for Raynaud's syndrome with characteristic attacks occurring at least daily. A 60 percent rating is assigned for Raynaud's syndrome with 2 or more digital ulcers and a history of characteristic attacks. A maximum 100 percent rating is assigned for Raynaud's syndrome with 2 or more digital ulcers plus autoamputation of 1 or more digits and a history of characteristic attacks. A Note to Diagnostic Code 7117 defines a characteristic attack as consisting of sequential color changes of the digits of 1 or more extremities lasting minutes to hours, sometimes with pain and paresthesias, and precipitated by exposure to cold or by emotional upset. See 38 C.F.R. § 4.104, Diagnostic Code 7117. 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. 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. At a VA general medical examination in October 2006, the Veteran reported that he has experienced cold sensitivity in his hands and feet during cold weather since he was in Ranger school in 1981. He indicated that it was very cold during Ranger school but he could not recall any frostbite to his hands or any other exposure. He stated that since that time if he cuts his nails too extensively to the quick he experienced pain and aching in the fingertips when the weather is cold requiring him to wear gloves. Physical examination of the hands revealed that the hands looked normal with good capillary blood flow, good pulses, and normal grip strength. There was no evidence of sclerodactylia in the hands and no lesions, blanching, or discolorations were noted. At an October 2006 VA neurological examination, the Veteran reported that his hands and feet were hypersensitive to cold. He indicated that his fingernails were brittle and broke easily. He reported pain on using his fingers but he denied numbness and weakness. No diagnosis of the hands was provided at that time. At an August 2008 VA neurological examination, the Veteran reported that he was exposed to cold during service in Ranger school and in Korea but he was not aware of frostbite and never treated for cold injuries. He reported that years after his service he realized that he could not use his hands in the cold and had to wear gloves. He indicated that he could not trim his nails short because the skin peeled away from the nail. He reported cold intolerance in the hands, but without color change or tissue loss. He endorsed arthralgia pain in the distal fingers when it was cold. He denied numbness, hyperhidrosis, scars, color changes, or skin cancers. Physical examination revealed that pulses in the hands were full and equal with good capillary refill and the skin was normal in color and consistency with normal hair pattern and no trophic changes. His fingernails were normal in shape and thickness. X-rays of the hands were normal. At a November 2009 VA neurological examination, the Veteran indicated that he had patchy sensory loss in his hands. His pulses were full and equal. There was good capillary refill and normal skin and integumentary structures. His skin was warm and dry and his fingernails were all normal. In an addendum to the examination, an electromyograph (EMG) revealed bilateral median nerve entrapment at the wrists (carpal tunnel syndrome) which the examiner noted was unlikely to be related to a cold injury. At a February 2014 VA examination, the Veteran reported that his hands burned and hurt when it was cold. He endorsed intermittent numbness in the middle three digits of the right and second through fifth digits of the left hand. He reported that during a migraine his hands would get cold, which would bring on symptoms. He indicated that he had some arthralgia in his hands. He denied tissue loss including the nails, but explained that if he did not cut his nails short they separated from his fingers. He denied hyperhidrosis and no color changes when his hands got cold. Physical examination revealed that the Veteran had arthralgia pain, cold sensitivity, and numbness. However, the Veteran's nails were specifically noted to be normal. X-rays of the hands were noted to show minimal degenerative joint change with no erosions or osteopenia. There was soft tissue swelling about the proximal joints suggestive of rheumatoid arthritis. The examiner indicated that motor strength was 5/5 with normal tone, bulk, and dexterity. Sensory testing showed that the Veteran was intact to fine touch, temperature, and vibration. The Veteran's skin was found to be warm and dry with normal consistency and integumentary structures. His nails were noted to be normal and his pulses were difficult to palpate. He carried gloves to keep his hands warm. The examiner indicated that the Veteran's cold injury residuals impacted his ability to work in that he could not tolerate cold exposure. The examiner concluded that Veteran had subjective complaints of pain and numbness on cold exposure without any current physical findings. The examiner indicted that he was unimpressed with the Veteran's history to make a diagnosis of Raynaud's phenomenon. In an April 2014 addendum, the VA examiner indicated that with regard to the conflicting information contained in the February 2014 examination report with regard whether the Veteran had abnormal fingernails, the Veteran had normal nails as indicated in the assessment that the Veteran had no abnormal findings on examination. In a May 2014 addendum, a VA physician reviewed the claims file and indicated that he reviewed the conflicting medical evidence and noted that while the February 2014 examiner stated that the soft tissue swelling about the proximal joints was suggestive of rheumatoid arthritis, the actual x-ray report noted mild degenerative changes and there was no mention of any suggestion of rheumatoid arthritis. The examiner indicated that there was no history of rheumatoid arthritis on review of the medical evidence of record. The examiner concluded that the minimal to mild degenerative joint disease of the hands is not attributable to cold injury. At a March 2015 video conference hearing before the Board, the Veteran testified that he had to carry gloves everywhere and avoid carrying cold objects. He reported that his fingers turned white, red, and bluish and at times his pain was very intense but other times the pain was less intense. He testified that he tried to remain calm and mellow because his hands hurt when he was agitated. The Veteran denied having ulcers on his fingers. He indicated that his hands hurt when he got migraines. He said that the coldness in his hands happened randomly and at times a few times per day and less often at other times. The Veteran indicated that he had locally impaired sensation, color changes, cold sensitivity, and pain and numbness but no tissue loss four to six times per week. The Veteran indicated that he worked as an academic advisor and kept a space heater in his office to keep his hands warm during the summer when air conditioning was used. Having reviewed the claims file and the relevant evidence of records the Board has determined that the Veteran meets the criteria for a rating of 20 percent and no more for his service-connected Raynaud's syndrome, cold injury residuals of the right and left hand. With regard to the criteria for an increased rating under DC 7122, the evidence of record reflects that the Veteran has endorsed pain, numbness, cold sensitivity, and arthralgia. Additionally, he described locally impaired sensation. This supports a 20 percent rating for both hands. A 30 percent rating is not found to be warranted. Neither hyperhidrosis nor tissue loss has been shown or alleged. While the Veteran has described how he keeps his finger nails cut short, physical examinations consistently found no nail abnormalities as contemplated by Diagnostic Code 7122. Likewise, the Veteran denied any color changes at his VA examination in 2014. Additionally, while minimal degenerative joint disease of the hands was shown on X-rays, the VA examiner explained why it was not felt to be related to the cold injury residuals. As such, the criteria for a 30 percent rating have not been met for either had under Diagnostic Code 7122. The Board will also consider whether a higher rating is warranted under DC 7117. Id. With regard to the criteria for an increased rating under DC 7117, the Board finds that the Veteran does not meet the criteria for a rating in excess of the 20 percent rating being granted herein. The Veteran testified that he had characteristic attacks consisting of pain and paresthesias precipitated by exposure to the cold or by emotional upsets at least four to six times per week. The Veteran did not indicate that the characteristic attacks occurred at least daily. Consequently, the Veteran meets the criteria for a rating of 20 percent and no more under DC 7117. Id. In order to meet the rating for a 40 percent under this DC, there must be characteristic prostrating attacks at least daily. Id. As noted, the evidence does not indicate that the Veteran has characteristic prostrating attacks at least daily. Consequently, the Veteran does not warrant a rating higher than 20 percent under DC 7117. Id. Thus, to the extent described above, the Veteran's claim is granted. III. Extraschedular Considerations The Board has additionally considered whether referral for consideration of an extraschedular rating is warranted. 38C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially 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, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. Here, the Board will not endeavor to discuss whether the symptoms of the Veteran's service-connected disabilities that are currently on appeal are adequately contemplated by the schedular ratings that are assigned. The reason for this is that even if it were found that the first step of the Thun analysis were answered in the positive, it would still not be found that there was an exceptional disability picture with regard to any of the disabilities on appeal that exhibited any of the "governing norms" of an extraschedular rating. That is, the service connected disabilities on appeal have not resulted in any hospitalization, and they have not been shown to cause "marked" interference with employment. The most recent VA examiner indicated that the Veteran's cold injury residuals resulted in his being intolerant to the cold. This finding is far short of marked interference with employment. The Veteran testified that he worked as an academic advisor, and he has not described how, if at all, his hands have interfered with his ability to work. As such, his disabilities did not cause marked interference with employment and the Board concludes that there is not anything unique or unusual about the Veteran's service-connected disabilities at issue that would render the schedular criteria inadequate; and therefore a referral for extraschedular consideration is not warranted. Finally, the Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Veteran has not, however, alleged that he is unemployable on account of any of his service-connected disabilities. Moreover, as noted, the Veteran testified that he was employed as an academic advisor. Thus, the Board finds that Rice is inapplicable since there is no evidence or allegation of unemployability due solely to any of the Veteran's service-connected disabilities. ORDER A 20 percent rating for Raynaud's syndrome, residuals of cold injury, right hand is granted, subject to the laws and regulations governing the award of monetary benefits. A 20 percent rating for Raynaud's syndrome, residuals of cold injury, left hand is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs