Citation Nr: 1628652 Decision Date: 07/19/16 Archive Date: 07/28/16 DOCKET NO. 12-29 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for residual of frostbite of the right upper extremity. 2. Entitlement to an increased rating in excess of 20 percent for residual of frostbite of the left upper extremity. 3. Entitlement to an increased rating in excess of 20 percent for residual of frostbite of the right lower extremity. 4. Entitlement to an increased rating in excess of 20 percent for residual of frostbite of the left lower extremity. REPRESENTATION Appellant represented by: Robert W. Gillikin, II (Attorney) ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from April 1978 to September 1989. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal was processed using the Veterans Benefits Management System (VBMS). In evaluating this case, the Board has also reviewed the "Virtual VA" system to ensure a complete assessment of the evidence. FINDING OF FACT For the entire increased rating period on appeal, frostbite residuals of the right and left upper and lower extremities are manifested by arthralgia or other pain, numbness, and cold sensitivity, but without tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 20 percent for residual of frostbite of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 7122 (2015). 2. The criteria for an increased rating in excess of 20 percent for residual of frostbite of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 7122 (2015). 3. The criteria for an increased rating in excess of 20 percent for residual of frostbite of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 7122 (2015). 4. The criteria for an increased rating in excess of 20 percent for residual of frostbite of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 7122 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issues decided herein. The RO sent the Veteran a letter in June 2010 that informed him of the requirements needed to establish increased ratings for cold injuries. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letters informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, post-service VA treatment records, and the Veteran's statements. In addition, the Veteran has been afforded an adequate examination on the issue of increased rating for service-connected cold injuries. VA provided the Veteran with examinations in July 2010 and September 2012. The Veteran's history was taken and a complete examination was conducted. Conclusions reached and diagnoses given were consistent with the examination reports. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issue of increased rating for service-connected cold injuries. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims. 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 v. Principi, 16 Vet. App. 183 (2002). Increased Ratings Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when 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 relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis for Frostbite Residuals The Veteran was initially granted service connection and assigned a 10 percent disability rating for residuals of frostbite to the upper and lower extremities in February 2006 and January 2007 rating decisions. On May 10, 2010, the RO received the Veteran's claim for an increased evaluation. In an October 2010 rating decision, the RO increased the Veteran's disability ratings for his bilateral upper and lower extremities to 20 percent effective May 10, 2010. The Veteran filed a notice of disagreement with the 20 percent ratings assigned. As such, the Board will consider whether ratings in excess of 20 percent for residuals of frostbite to the right and left upper and lower extremities are warranted for the increased rating period on appeal. The Veteran's service-connected frostbite residuals of the right and left upper and lower extremities have been evaluated at 20 percent disabling under Diagnostic Code 7122, pertaining to cold injury residuals. A 20 percent rating for cold injury residuals requires arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis in the affected parts. A maximum 30 percent rating is warranted for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following manifestations in the affected parts: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis. 38 C.F.R. § 4.104, Diagnostic Code 7122. A note to Diagnostic Code 7122 states that amputations of fingers or toes and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy are to be separately evaluated under other codes. Other disabilities that have been diagnosed as the residual effects of a cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., also are to be separately evaluated unless they are used to support an evaluation under Diagnostic Code 7122. A second note provides that each affected part is to be evaluated separately. 38 C.F.R. § 4.104, Diagnostic Code 7122. After review of all the lay and medical evidence, the Board finds that the preponderance of the evidence is against finding that either the right or left upper or lower frostbite residuals more nearly approximate the criteria for an increased disability rating of 30 percent; or that any separate ratings are warranted. The Veteran was afforded a VA examination in July 2010. During the evaluation, the Veteran reported a cold injury which occurred during cold weather training in Alaska in 1989. The parts of the body affected were noted to include the hands and feet. The injured parts included symptoms of sensitivity to cold and progressive aching in hands. The Veteran reported that he had a history of Raynaud's Syndrome involving the hands and feet for 7 years. The typical attack occurred three times a week during the winter and none in the summer. Due to the cold injuries, the Veteran stated that had changes in skin color and joint pain due to stiffness. The Veteran denied having profuse sweating, abnormal sensation, recurrent fungal infections, breakdown of the frostbite scars, disturbances of nail growth, or edema of the injured part. The Veteran reported having persistent, severe burning pain in the hands and feet. Upon physical examination, the July 2010 VA examiner noted that the skin was clear of rashes or lesions. There were no atrophic skin changes, ulceration, gangrene, ischemic limb pain, or persistent coldness. The Veteran was able to tie his shoes, fasten buttons, and pick up a piece of paper and tear it without difficulty. Examination of the feet revealed no tenderness, painful motion, weakness edema, heat, redness, instability, atrophy, or disturbed circulation. There was also active motion in the metatarsophalangeal joint of the right and left great toe. A neurological examination of the upper and lower extremities revealed motor function within normal limits. The examiner noted that the location of the cold injuries involved the hand and feet; however, there was no discoloration of the cold injury parts. There was also no edema present and the skin texture was normal. There was no evidence of fungal infection, ulcerations, deformity, atrophy, loss of tissue, or loss of digits. The temperature of the extremities were within normal limits, the skin moisture was normal to touch, and there were no missing nails. The examiner further indicated that x-rays of the bilateral hands and feet showed no fracture, displacement, or significant degenerative changes. The examiner also clarified that no signs or symptoms of Raynaud's Syndrome was found on examination. The Veteran was afforded another VA examination in September 2012. During the evaluation, the Veteran reported that he had episodes where he could not move his upper or lower extremities. He stated that his extremities would feel "paralyzed." He also noted that he could not be outside in cold weather for too long due to worsening symptoms. The examiner indicated that the Veteran's upper and lower extremities manifested symptoms of arthralgia, cold sensitivity, and numbness. X-rays of the hands and feet showed no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. The Veteran also did not use any assistive devices. The examiner then indicated that the Veteran suffered cold injury to all four extremities many years ago. Pursuant to the examination, the examiner noted that the Veteran had "minimal residual to conditions." All of the Veteran's digits were normal and there were no missing extremities. The Veteran had minimal pain on palpation of extremities and response to touch was normal. Response to painful sensation was slightly diminished and range of motion of all four extremities was normal. While the record includes VA treatment reports, such do not contain sufficient data to evaluate the Veteran's cold injury residuals of the bilateral feet and hands under the applicable rating criteria. Upon review of all the evidence of record, lay and medical, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's cold injuries. The Board finds that the Veteran's service-connected right and left foot and hand disabilities have been manifested by pain, cold sensitivity, and numbness plus locally impaired sensation. The Veteran's representative has argued that the Veteran has numbness, "which is to say, he has sensory loss (i.e., locally impaired sensation)." The Board agrees. In this regard, the September 2012 VA examiner indicated that, during the physical examination, "response to painful sensation was slightly diminished." The Board finds that objective evidence of a diminished response to painful sensation essentially corresponds to locally impaired sensation. As noted above, under Diagnostic Code 7122, a 20 percent rating is appropriate for cold injury residuals manifested by pain, numbness, or cold sensitivity plus locally impaired sensation in the affected parts. In order to obtain the maximum 30 percent rating under Diagnostic Code 7122, the Veteran's cold injury residuals must manifest pain, numbness, or cold sensitivity plus two or more of the following manifestations in the affected parts, including: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis. 38 C.F.R. § 4.104, Diagnostic Code 7122. In this case, although the Veteran has one manifestation of cold injury residuals of the affected parts (i.e., locally impaired sensation), the evidence does not show that he has two manifestations-such as tissue loss, nail abnormalities, color changes, hyperhidrosis, or x-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis. The Board acknowledges that the Veteran reported having changes in skin color during the July 2010 VA examination. However, the July 2010 VA examiner noted that there was no discoloration of the cold injury parts, to include his hands or feet. Similarly, the September 2012 VA examiner did not find that the Veteran's cold injuries included symptoms of color changes in any of the affected extremities. The Veteran also did not report having discoloration of his extremities at the time of the September 20121 VA examination. VA treatment records also do not show any complaints or indications of discoloration of the affected parts. As such, the Board finds that the weight of the evidence is against a finding that the Veteran has color changes of the affected extremities. The Board also notes that the September 2012 VA examiner specifically indicated that the Veteran had "minimal residual to conditions." The Board finds that the currently assigned 20 percent disability rating adequately contemplates the Veteran's symptomatology. For these reasons, the Board finds that the demonstrated symptomatology and functional impairment for the residuals of right and left foot and hand cold injury do not meet or more nearly approximate the schedular criteria for a 30 percent disability rating under Diagnostic Code 7122 for any part of the appeal period. The Board has also considered whether separate ratings are warranted. As indicated above, a note to Diagnostic Code 7122 states that amputations of fingers or toes and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy are to be separately evaluated under other codes. 38 C.F.R. § 4.104, Diagnostic Code 7122. The Board notes that in a February 2006 VA treatment record, the Veteran complained of neuropathy. It was noted that the Veteran had been diagnosed with peripheral neuropathy involving the upper extremities the year prior. He reported aching pain which was worse in cold weather. During the evaluation, the Veteran stated that he had pain that started at his fingertips and worsened around the elbow and shoulder. The Veteran stated that cold weather exacerbated his symptoms. After a physical examination, the Veteran was assessed as having chronic arm pain and peripheral sensory neuropathy. More recent VA treatment records continue to include "peripheral nerve disease" listed on the active problem list. See e.g., May 2011 VA treatment record. Although it appears that the Veteran had been diagnosed with peripheral neuropathy of the upper extremities in approximately 2005, this is outside the current rating period (i.e., Veteran filed current claim for increase in May 2010). Nonetheless, VA is required to consider the entire medical history in increased rating claims. See Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. §§ 4.1, 4.2 (2013). Although peripheral nerve disease is listed on the Veteran's VA problem list, the evidence does not show that he continues to have peripheral neuropathy of the extremities. For example, the July 2010 VA examiner conducted a neurological examination and indicated that the Veteran's upper and lower extremities had normal motor function. A sensory exam to pinprick, touch, position, vibration, and temperature was equally bilaterally intact. The examiner also specifically stated that the Veteran did not have peripheral neuropathy and osteoarthritis-like involvement. Moreover, in a July 2012 VA treatment record (in Virtual VA), the Veteran underwent a neurological examination which showed no peripheral sensory deficits. Muscular coordination was normal and strength was 5/5 throughout. The Veteran had normal muscle bulk and tone. Rapid alternating movements and point-to-point movements were intact. Gait was normal and the Veteran ambulated freely. Romberg's test was negative and deep tendon reflexes were 2+ and equal in upper and lower extremities. Babinski sign was also absent. For these reasons, the Board finds that the weight of the evidence of record, to include the July 2010 and July 2012 neurological examinations, does not show that the Veteran has peripheral neuropathy associated with his cold injuries. As such, separate ratings are not warranted. In sum, the Board finds that the preponderance of the evidence is against the appeal for ratings in excess of 20 percent for service-connected cold injury residuals of the bilateral upper and lower extremities for the entire appeal period. Accordingly, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2015). 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. Therefore, 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, 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, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine 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 included "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the symptomatology and impairment caused by the Veteran's service-connected frostbite residuals are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The rating criteria found in Diagnostic Code 7122 contemplate the Veteran's symptoms and impairment, and reasonably describe the disability level and symptomatology, to include pain, numbness, or cold sensitivity and discoloration. 38 C.F.R. § 4.114, Diagnostic Code 7346. For these reasons, the Board finds that the schedular rating criteria are adequate to rate the disability on appeal, and referral for consideration of an extraschedular evaluation is not warranted. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran regarding the service-connected cold injuries are specifically contemplated by the criteria discussed above, including the effect of the Veteran's symptoms on her occupation and daily life. In the absence of exceptional factors associated with the Veteran's disabilities, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Moreover, the Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was reasonably raised by the record in this case. Neither the Veteran nor the evidence suggests unemployability due to service-connected disabilities. Rice v. Shinseki, 22 Vet. App. 447 (2009). Although VA treatment records suggest that the Veteran is unemployed, he has not asserted that he is unemployable as a result of his service-connected disabilities. On the other hand, the Veteran has stated that he wants a job in retail, at a warehouse, or as a delivery driver. See e.g., July 2012 VA treatment record in Virtual VA. Therefore, as the issue of a TDIU is not reasonably raised by the record, it is not part of the rating appeal. [CONTINUED ON NEXT PAGE] ORDER An increased rating in excess of 20 percent for residual of frostbite of the right upper extremity is denied. An increased rating in excess of 20 percent for residual of frostbite of the left upper extremity is denied. An increased rating in excess of 20 percent for residual of frostbite of the right lower extremity is denied. An increased rating in excess of 20 percent for residual of frostbite of the left lower extremity is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs