Citation Nr: 1632995	
Decision Date: 08/19/16    Archive Date: 08/26/16

DOCKET NO.  14-10 406	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to separate disability ratings for bilateral lower extremity peripheral neuropathy, also claimed as a bilateral leg nerve condition.  

2.  Entitlement to an initial disability rating in excess of 30 percent for left frozen foot. 

3.  Entitlement to an initial disability rating in excess of 30 percent for right frozen foot.

4.  Entitlement to an initial disability rating in excess of 10 percent for asbestosis.

5.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to the service-connected disabilities. 


REPRESENTATION

Appellant represented by:	Neil Riley, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

G. Fraser, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1950 to February 1956.  This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.     

In May 2016 the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.

In addition, the Board acknowledges that the Veteran has also initiated an appeal for entitlement to service connection for facial scars, atypical chest wall pain, and an aortic aneurysm (also claimed as chest pain).  However, the Board's review of the record reveals that the Agency of Original Jurisdiction (AOJ) has not certified these issues for consideration by the Board, and it appears the AOJ is still taking action on the issues.  As such, the Board will not accept jurisdiction over these issues at this time, but those issues will be the subject of a subsequent Board decision, if otherwise in order.

All issues other than entitlement to separate disability ratings for bilateral lower extremity peripheral neuropathy are addressed in the REMAND that follows the ORDER section of this decision.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  

The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System (VBMS).


FINDING OF FACT

Distinct disability manifestations of cold injuries, to specifically include peripheral neuropathy, are to be separately evaluated. 


CONCLUSION OF LAW

The criteria for separate disability ratings for bilateral lower extremity peripheral neuropathy have been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7122 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to separate disability ratings for bilateral lower extremity peripheral neuropathy.  Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2016).




General Legal Criteria

Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016).  The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).

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 required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2016). 

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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2016). 

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14 (2016).  However, 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran's left and right frozen feet are each rated under 38 C.F.R. § 4.104, Diagnostic Code 7122 (cold injury residuals).  A maximum 30 percent rating is assigned under Diagnostic Code 7122 for cold injury residuals manifested by 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 punch out lesions, or osteoarthritis). 

Note (1) to Diagnostic Code 7122 provides that amputations of fingers or toes and complications at the site of a cold injury scar or peripheral neuropathy should be evaluated separately.  


Burden of Proof

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Factual Background and Analysis

The Veteran asserts separate disability ratings for left and right lower extremity peripheral neuropathy is warranted in this case.  The Board notes the RO established service connection for left and right frozen feet with peripheral neuropathy in a February 2012 rating decision.  In that decision, the RO noted the Veteran's bilateral neuropathy was found to be more likely than not a residual of his in-service frost bite injury, because peripheral neuropathy is a common sequelae of frost bite.  However, the RO determined separate disability ratings were not warranted, because the Veteran's neuropathy was used to assign a 30 percent evaluation under Diagnostic Code 7122.  

Determining whether a separate rating is warranted in this case involves an analysis of Diagnostic Code 7122, as well as an understanding and application of the principles of pyramiding cited in 38 C.F.R. § 4.14.  As noted above, a 30 percent rating is warranted if cold injury residuals are manifested by arthralgia or other pain, numbness, or cold sensitivity, as well as 2 or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punch out lesions, or osteoarthritis).  The February 2012 rating decision noted the Veteran's peripheral neuropathy causes "diminished sensation."  

The Board notes an October 2013 VA examination indicates the Veteran experiences several other manifestations attributable to his cold injury, which include arthralgia/pain, numbness, nail abnormalities, osteoarthritic changes, and color changes.  The principles of pyramiding noted in 38 C.F.R. § 4.14 indicate an evaluation of the same disabling manifestations under various diagnostic codes is to be avoided.  Nonetheless, Note 1 following Diagnostic Code 7122 expressly provides for a separate disability rating for, among other things, peripheral neuropathy.  In this case, the Board finds the disabling manifestations associated with the Veteran's bilateral lower extremity peripheral neuropathy are not required in order to assign a 30 percent disability rating under Diagnostic Code 7122, as indicated in the February 2012 rating decision.  Rather, a 30 percent rating is warranted as a result of the Veteran's arthralgia, with more than two additional findings that included x-ray abnormalities, nail abnormalities and color changes.  As such, the Board finds a separate disability rating is warranted for bilateral lower extremity peripheral neuropathy in this case, as the symptomatology resulting from those disabilities are not necessary to assign the highest disability rating under Diagnostic Code 7122.    


ORDER

Entitlement to separate disability ratings for bilateral lower extremity peripheral neuropathy is granted.  




REMAND

Initially, the Board observes the Veteran most recently underwent VA examinations to assess the severity of his service connected asbestosis and frozen feet in October 2013.  Since his October 2013 VA examinations, the Veteran has asserted his disabilities have worsened.  Specifically, in the course of his May 2016 Board hearing, the Veteran reported experiencing more difficulty breathing, as well as increased pain, swelling, and numbness in his legs.  A new VA examination is necessary where there is evidence, including the Veteran's statements, that a service-connected disability has worsened since the last examination, and the last examination is too remote to constitute a contemporaneous examination.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991).  

In addition, in March 2014 the Veteran's representative initiated a claim for a TDIU rating.  The RO obtained a medical opinion in August 2014 from a VA examiner that conducted a respiratory examination in March 2012.  Though the examiner assessed the functional impairments caused by the Veteran's service-connected disabilities in isolation, he failed to state whether the cumulative functional effects of the Veteran's service connected disabilities would preclude substantially gainful employment.  As such, the RO or AMC must also obtain a medical opinion assessing the Veteran's employability status.  

On remand, relevant ongoing medical records should be obtained.  38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 

1.  The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims.  If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).

2.  The RO or the AMC should also afford the Veteran a VA examination by a clinician with sufficient expertise to determine the current severity of his service-connected asbestosis and bilateral frozen feet.  The electronic records should be made available to and reviewed by the examiner.  

The RO or the AMC must ensure that the examiner provides all information required for rating purposes.

3.  The RO or the AMC should also obtain from the VA examiner an assessment of the functional impact of the service-connected disabilities on the Veteran's employability. 

Specifically, the examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's service-connected disabilities, either singularly or in concert, are sufficient to preclude the Veteran from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. 

In this regard, the examiner should provide concrete examples of functional impairments caused by the Veteran's service-connected disabilities.  Such impairments include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration.  A rationale for the opinion must also be provided.

4.  The RO or the AMC should then undertake any other development it determines to be warranted.

5.  Finally, the RO or the AMC should readjudicate the issues on appeal.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran a supplemental statement of the case and afford the requisite opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate action.

By this remand, the Board intimates no opinion as to any final outcome warranted.

The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

As noted above this case has been advanced on the Board's docket.  It must also be handled in an expeditious manner by the RO or the AMC.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs