Citation Nr: 1610561 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 11-24 969 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for cold injury residuals to the upper extremities. 2. Entitlement to a rating in excess of 30 percent for residuals of frostbite with degenerative changes of the left lower extremity. 3. Entitlement to a rating in excess of 30 percent for residuals of frostbite with degenerative changes of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1975 to July 1978. These matters are before the Board of Veterans' Appeals (Board) on appeal from October 2010 and June 2012 rating decisions by the Waco, Texas RO. In October 2015, a Travel Board hearing was held before the undersigned; a transcript of the hearing is in the record. At the hearing the Veteran requested, and was granted, a 60 day abeyance period to allow for the submission of additional evidence; such time period has lapsed and no new evidence was received. FINDINGS OF FACT 1. A current disability of cold injury residuals to the upper extremities is not shown at any time. 2. The 30 percent rating currently in effect is the maximum schedular rating for residuals of frostbite with degenerative changes of the left lower extremity; factors warranting referral for extraschedular consideration are neither shown nor alleged. 3. The 30 percent rating currently in effect is the maximum schedular rating for residuals of frostbite with degenerative changes of the right lower extremity; factors warranting referral for extraschedular consideration are neither shown nor alleged. CONCLUSIONS OF LAW 1. Service connection for cold injury residuals to the upper extremities is denied. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 2. A rating in excess of 30 percent for residuals of frostbite with degenerative changes of the left lower extremity is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.87, Diagnostic Code 7122 (2015). 3. A rating in excess of 30 percent for residuals of frostbite with degenerative changes of the right lower extremity is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.87, Diagnostic Code 7122 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, 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, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative 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) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of his claims. May 2010 and February 2012 letters explained the evidence necessary to substantiate the claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. During the October 2015 Travel Board hearing, the undersigned advised the appellant of what is still needed to substantiate the claims (evidence of a nexus between a current disability of the upper extremities and service, and evidence of increased severity of the disabilities of the lower extremities); the appellant's testimony reflects that he is aware of what is needed to substantiate the claims. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The AOJ arranged for VA examinations in June 2005, September 2010, April 2012 and August 2014, which the Board finds to be (cumulatively) adequate as they included both a review of the Veteran's history and physical examinations that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). That is, these examinations, in the Board's judgment, show a thorough consideration of the disabilities on appeal and provide the necessary information to adjudicate the claims. The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378 (Fed. Cir. 2000). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. Service connection for cold injury residuals to the bilateral upper extremities Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. The Veteran contends that he has a current disability manifested as cold injury residuals to the bilateral upper extremities. His STRs are silent for any complaints, findings, treatment, or diagnosis of cold injury to the upper extremities, or residuals thereof. In January 1976, he was treated for swelling and painful feet, and the examiner at that time stated that he may suffer from probable cold weather injuries; there were no complaints or findings regarding the upper extremities. On May 1978 service separation examination, the upper extremities were normal on clinical evaluation. All available VA treatment records are silent for a diagnosis of, or treatment for, any disability diagnosed as cold injury residuals to the upper extremities. On June 2005 VA examination, the Veteran reported that his hands were affected by cold injury in Germany from being outside in the cold and freezing rain in 1976. He reported that he initially could not move his hands and they felt like pins, and he currently had the feeling of a cold body in hot weather and edema of the hands. He reported that his hands were sensitive to the cold and would become cold easily. He did not report any symptoms of pain or causalgia at night or with cold weather. Following a physical examination, there was no diagnosis regarding the Veteran's hands. On September 2010 VA examination, the Veteran reported that he had frostbite in both hands and both feet in 1976 and was treated with rest only. He reported tingling and burning in his hands and feet both day and night. He reported that cold made his symptoms feel worse. On physical examination, there was full range of motion of the extremities, and strength and muscle tone was normal and symmetrical throughout. Sensory testing was normal, and the skin was warm. There was no diagnosis regarding the upper extremities. On April 2012 VA examination, the Veteran was noted to have been diagnosed with cold weather injury due to frostbite of the bilateral feet. He reported that he had frostbite to his hands and feet while on active duty in Germany in 1976. The examiner noted that the Veteran was treated for frostbite (cold weather injury) while on active duty; he was only given bedrest for 24 hours for one day and the next day he was given an excuse for inside work off his feet for one day. The examiner noted that the complaint in 1976 was for numbness, tingling and pain in the toes/feet only, and there was no mention of complaint of upper extremity symptoms or evaluation; there was no diagnosis on that date of cold weather injury of the upper extremities, only the lower extremities. The examiner noted there is no documentation in the STRs of cold weather injury (frostbite) of the upper extremities anywhere in the STRs. The Veteran stated that he complained of symptoms of both the upper and lower extremities at the same time, but the examiner again noted there is only documentation of injury to the lower extremities. On physical examination, the Veteran reported numbness and cold sensitivity of both hands. X-ray results of both hands showed no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions; the hands were normal in appearance. The examiner opined that the Veteran's claimed residuals of cold injuries to the bilateral upper extremities was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that there is no documentation in the Veteran's STRs of complaint of cold weather injury to the bilateral upper extremities, there is no abnormality on X-ray examination, and there are no gross changes on physical examination consistent with cold weather injury of the bilateral upper extremities. On August 2014 VA examination, the examiner noted that the Veteran has a previous medical history significant for diabetes mellitus, to which he has previously attributed his symptoms in his hands as well as vision problems. The Veteran reported that he had frostbite to both his hands and feet in service. The examiner cited the April 2012 VA examiner's findings regarding the lack of documentation of any upper extremity complaints regarding frostbite in the STRs; the examiner also noted that the VA treatment records are silent for signs or symptoms consistent with residuals of frostbite to the bilateral upper extremities as well. On physical examination, the Veteran complained of cold sensitivity and numbness of both hands. X-ray results of both hands showed no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. The diagnosis was residuals of cold injury to the bilateral feet; there was no diagnosis regarding the upper extremities. At the Board hearing, the Veteran testified that he first experienced problems related to frostbite in his hands at the same time as he did with his feet, in Germany. He testified that he sought treatment for a feeling of needles poking his hands and was put on bed rest. He testified that his initial hand symptoms lasted for about a week and a half, the same as his foot symptoms. He testified that currently his hands are always cold but he does not experience burning, numbness, tingling, or loss of sensation in the hands. He is not receiving treatment for a cold residual injury in the upper extremities. The threshold requirement here (as in any claim seeking service connection) is that there must be competent evidence that the Veteran has (or during the pendency of the claim has had) the disability for which service connection is sought, i.e., cold injury residuals to the bilateral upper extremities. See 38 U.S.C.A. § 1131. The record does not include any such evidence. Notably, the treatment records associated with the record do not show any diagnosis or treatment for any disability manifested as cold weather injury residuals to the upper extremities. The Veteran's contentions do not support a finding that he has had persistent or recurrent symptoms of such disability. Significantly, the Veteran has never identified a physician who gave a confirmed diagnosis of cold injury residuals to the upper extremities or who provides ongoing treatment. Accordingly, there is no valid claim of service connection for cold injury residuals to the bilateral upper extremities. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In light of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for cold injury residuals to the upper extremities. Accordingly, it must be denied. In denying this claim, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Increased ratings for residuals of frostbite with degenerative changes of the bilateral lower extremities Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). A September 2005 rating decision granted the Veteran service connection for residuals of frostbite with degenerative changes of the bilateral lower extremities, rated 30 percent each, effective November 4, 2004. In an April 2010 statement, he contended that he is unable to stand for long periods of time due to his service-connected disabilities of the lower extremities; the statement was accepted as a claim for increased ratings. Cold injury residuals are evaluated under Code 7122, under which a 30 percent rating is warranted with 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). Note (1) under Code 7122 instructs to separately evaluate other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under Code 7122. Note (2) under Code 7122 instructs to evaluate each affected part (e.g., hand, foot, ear, nose) separately and combine the ratings in accordance with 38 C.F.R. §§ 4.25 and 4.26. Code 7122 specifically allows only a maximum 30 percent rating unless there are exceptional or unusual circumstances to warrant referring the case for extra-schedular consideration. 38 C.F.R. § 3.321. On September 2010 VA examination, the Veteran reported that he had last worked in July 2010, stocking at Wal-Mart; he was not able to stand on his feet all night and had some swelling in his feet and legs. He had previously worked in an office position in customer service for 17 years until his position was outsourced. He reported chronic pain in the right knee, right ankle, and right foot. He reported that his feet and legs were always cold. He reported tingling and burning in his hands and feet both day and night. He reported that cold made his symptoms feel worse. He reported paresthesias but no causalgia or reflex symptomatic dystrophy. He had arthritis in the right knee but not in the feet or ankles. He had swelling over the foot, ankle and lower leg and he also had a history of deep vein thrombosis. He felt like the skin on the soles of his feet was thickened, and they felt cold all the time with numbness and tingling. He reported that he typically wore two pairs of socks to bed when the weather is cold and he used an electric blanket in cold weather. X-ray results showed bilateral plantar calcaneal spurs and postsurgical changes of the distal right first metatarsal that were unchanged in appearance since the previous examination. On physical examination, the Veteran's skin color was normal and his feet were warm to the touch. There was no skin atrophy and there were no ulcerations. Hair growth was normal. There was no onycholysis of the right great toe and possible onychomycosis of the right fourth and fifth toenails, both of which were thickened. There was a bunion scar over the right foot. Deep tendon reflexes were normal and equal in the patella and absent ankle jerk bilaterally. There was a slight decrease in sensation over the right foot extending up the right leg in a patchy distribution. Motor testing was 5/5. There was no deformity or swelling of any joints. Range of motion was normal except for slightly decreased at the right great toe. There was mild to moderate pes planus bilaterally. There was a callus in the plantar surface of the right foot between the second and third metatarsal heads. There were smaller calluses of the medial aspect of both great toes. There was no tissue loss and peripheral pulses were normal. There was no evidence of vascular insufficiency. There were varicosities of both lower legs which were mild and worse on the right side. There was trace pitting edema and non-pitting edema over the right lower leg. There was no evidence of Reynaud's phenomenon. The diagnoses included residuals of frostbite of the bilateral lower extremities, diabetes mellitus, and deep vein thrombosis. The examiner opined that the disabilities did not render the Veteran unemployable. On January 2011 VA treatment, the Veteran's feet were examined and there were no skin breaks, deformity, erythema, trauma, pallor on elevation, dependent rubor, nail deformities, extensive callus or pitting edema noted. Sensory testing of the feet using monofilament was within normal limits. The dorsalis pedis and posterior tibial pulses were present and within normal limits. There were no complaints of foot pain. On April 2012 VA treatment, the Veteran's feet were within normal limits on visual inspection with the exception of right leg 1+ edema. Sensory testing of the feet using monofilament was within normal limits. The dorsalis pedis and posterior tibial pulses were present and within normal limits. There were no complaints of foot pain. On April 2012 VA examination, the Veteran reported numbness and cold sensitivity of both feet. X-ray results of both feet showed no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions; bilateral plantar calcaneal spurs and postsurgical changes of the distal right first metatarsal were unchanged since the previous examination. The Veteran denied using any assistive devices as a normal mode of locomotion. The examiner opined that the Veteran's cold injury residuals do not impact his ability to work. On August 2014 VA examination, the Veteran complained of cold sensitivity and numbness of both feet. X-ray results of both feet showed no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. The diagnosis was residuals of cold injury to the bilateral feet. The Veteran denied the use of any assistive devices as a normal mode of locomotion. The examiner opined that the Veteran's cold injury residuals do not impact his ability to work. The Veteran reported that he was currently employed part-time as a school crossing guard for the previous 2 years after he retired/was laid off in 2009 from his regular occupation as an IT manager for a transportation company. The examiner opined that the Veteran's service-connected disability of cold injury residuals of the bilateral lower extremities do not inhibit him from obtaining and maintaining gainful employment. At the October 2015 Board hearing, the Veteran testified that the loss of feeling in his feet had become progressively worse over the previous 5 years. He testified that his symptoms include numbness, tingling, burning sensations, and a constant feeling of cold; he does not have any tissue loss. He testified that he stumbles due to lack of sensation in his feet and he has to grab his cane to keep from stumbling through the house. He testified that he is less mobile and no longer works in his yard for fear of stumbling. He testified that his feet are evaluated every 3 to 4 months but he has not been prescribed any orthotics or medication. He testified that during the appeal period, he had several part-time jobs, including as a school crossing guard, but he stumbled while walking children across the street. He testified that he is not unemployable solely because of his bilateral leg disability, and he could probably do a desk job. The preponderance of the evidence is against a finding that the Veteran's service-connected residuals of a cold injury of the right and/or left lower extremities are so exceptional or unusual, as to render the use of the regular rating schedule standards impractical, and entitlement to extraschedular evaluations are denied. Current medical records have not provided evidence that the Veteran has been hospitalized for any extended periods of time due to his bilateral lower extremity residuals of a cold injury, nor has he required any form of surgical intervention for the disabilities. Several VA examiners have determined that the Veteran was not unable to work due to his service-connected residuals of a cold injury of the bilateral lower extremities. Further, the Veteran testified that he is not unemployable solely because of his bilateral leg disability, and he could probably do a desk job. For these reasons, referral for extraschedular consideration is not warranted, and the Veteran's claims for ratings in excess of 30 percent for service-connected residuals of frostbite with degenerative changes of the right and left lower extremities must be denied. ORDER Service connection for cold injury residuals to the upper extremities is denied. A rating in excess of 30 percent for residuals of frostbite with degenerative changes of the left lower extremity is denied. A rating in excess of 30 percent for residuals of frostbite with degenerative changes of the right lower extremity is denied. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs