Citation Nr: 1751341	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO. 13-31 904	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to service connection for a low back disorder, to include degenerative disc disease of the lumbar spine, to include as secondary to service-connected cold weather residuals of the bilateral lower extremities and pes planus.

2. Entitlement to a disability rating in excess of 10 percent from August 17, 2010 to April 10, 2012, and in excess of 30 percent from April 11, 2012 for service-connected cold weather residuals of the left lower extremity. 

3. Entitlement to a disability rating in excess of 10 percent from August 17, 2010 to April 10, 2012, and in excess of 30 percent from April 11, 2012 for service-connected cold weather residuals of the right lower extremity.

4. Entitlement to a disability rating in excess of 30 percent from April 11, 2012 to September 17, 2014, and in excess of 50 percent from September 17, 2014 for service-connected migraines. 

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


REPRESENTATION

Veteran represented by:	J. Robert Surface, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from September 1991 to April 1994, and in the U.S. Army Reserves from May 1994 to January 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.

In April 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. During the hearing, the undersigned engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the Board hearing is included in the electronic claims file.

The issue of service connection for a low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. For the period beginning August 17, 2010 to April 11, 2012, the Veteran's bilateral lower extremity frostbite residuals presented with symptoms of pain, numbness, cold sensitivity, nail abnormalities, and color changes.

2. For the period beginning April 11, 2012 to September 17, 2015, the Veteran's migraines presented with frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability.

3. With resolution of the factual doubt in her favor, the Veteran's service-connected disabilities prevent her from securing or following a substantially gainful occupation.


CONCLUSIONS OF LAW

1. Resolving all reasonable doubt in favor of the Veteran, the criteria for a disability rating of 30 percent from August 17, 2010 to April 11, 2012 for service-connected cold weather residuals of the left lower extremity have been met. 38 U.S.C.A. 
§§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7122 (2016).

2. Resolving all reasonable doubt in favor of the Veteran, the criteria for a disability rating of 30 percent from August 17, 2010 to April 11, 2012 for service-connected cold weather residuals of the right lower extremity have been met. 38 U.S.C.A. 
§§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code 7122 (2016).


3. Resolving all reasonable doubt in favor of the Veteran, the criteria for a disability rating of 50 percent from April 11, 2012 to September 17, 2015 for service-connected headaches have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2016).

4. Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to TDIU have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). 

VA's duty to notify was satisfied by an October 2010 letter. See 38 U.S.C.A. 
§§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment and personnel records, and VA medical records. The Veteran has not identified any outstanding records needing to be obtained. The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159(c).

VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded several VA examinations concerning her cold weather residuals and migraines. The VA examiners provided clear explanations in support of the opinions and findings. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion"). The VA examinations and medical opinions are adequate to decide the Veteran's claims. 

VA has satisfied its duties to notify and assist. The Board may proceed with appellate review. 

Increased Ratings 

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 

When a question arises as to which of two ratings apply under a particular diagnostic code (DC), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

Increased Rating for Residuals of Frostbite

The Veteran's claim for an increased rating was received on August 17, 2010. Her bilateral lower extremity frostbite residuals were rated as 10 percent disabling from August 17, 2010 to April 10, 2012, and from 30 percent disabling from April 11, 2012. Under DC 7122 governing cold injury residuals, a maximum 30 percent evaluation requires 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); a 20 percent rating requires 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); and a 10 percent rating requires arthralgia or other pain, numbness, or cold sensitivity. 38 C.F.R. § 4.104.

Upon VA examination in September 2010, the examiner noted the Veteran experienced decreased sensation in her toe tips, and pain bilaterally. The examiner also noted X-rays of both feet demonstrated no acute osseous abnormalities and no arthritic changes. The examiner did not note any loss of tissue, nail abnormalities, color changes, locally impaired sensation, or hyperhidrosis.

Upon VA examination in March 2011, the examiner noted the Veteran's feet presented with constant pain that increased in cold weather. The pain was sharp, dull, and burning, and included numbness and tingling. The Veteran also reported swelling, sensitivity to cold, misshapen nails, loss of sensation, and change in her skin. The examiner noted the Veteran had discoloration and thickening at the small toenails. The examiner also noted no loss of tissue on the feet. 

The evidence is in relative equipoise that the Veteran's bilateral lower extremity frostbite residuals more closely approximates the criteria for a 30 percent disability rating prior to April 11, 2012. The Veteran experienced pain, numbness and cold sensitivity, as well as nail abnormalities and color changes. The 30 percent disability rating is the highest schedular rating under DC 7122. 38 C.F.R. § 4.71a.

Note 1 following DC 7122 provides for additional rating evaluations for amputations of fingers or toes. Complications, such as squamous cell carcinoma at the site of a cold injury scar, or peripheral neuropathy and other disabilities that have been diagnosed as residual effects of cold injuries such as Raynaud's phenomenon or muscle atrophy also warrant an additional rating evaluation. 

Medical records of evidence do not demonstrate the presence of any complications or amputations which would warrant an additional rating evaluation under DC 7122, Note 1. VA treatment records are absent of any complaints, treatment or diagnosis for squamous cell carcinoma, Raynaud's phenomenon or muscle atrophy. While the Veteran has a diagnosis of peripheral neuropathy, April 2012 VA treatment records indicate that it is due to the Veteran's low back disorder. Furthermore, there is no evidence suggesting the Veteran has loss of use of either foot. A higher rating for residuals of a cold injury to either foot is therefore not warranted. 

Increased Rating for Migraines

The RO rated the Veteran's service-connected headaches as 30 percent disabling from April 11, 2012 to September 17, 2015 under DC 8100.

Under DC 8100, a 50 percent rating is warranted with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. A 30 percent rating is warranted with characteristic prostrating attacks occurring on an average once a month, over the preceding several months. A 10 percent rating is warranted with characteristic prostrating attacks averaging once per two months, over the preceding several months. A non-compensable rating is assigned with less frequent attacks. 38 C.F.R. § 4.124a.

The Rating Schedule does not define "prostrating," nor has the Court. See Fenderson v. West, 12 Vet. App. 119 (in which the Court quotes DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, "prostration" is defined as "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary 1531 (32nd ed. 2012). Similarly, "prostrate" is defined as "physically or emotionally exhausted; incapacitated." See Webster's II New College Dictionary 889 (2001).

December 2012 VA treatment records note that the Veteran experienced severe headaches every day, lasting approximately three to four hours. In December 2013, the Veteran reported experiencing migraines approximately three times per week. 

Upon VA examination in April 2013, the VA examiner noted the Veteran experienced blurred vision approximately every other day, with prostrating headaches approximately once a month. The Veteran reported her headaches lasted anywhere from 2 to 24 hours. The examiner determined the Veteran did not have very frequent prostrating and prolonged attacks of migraine headache pain.

Upon VA examination in September 2014, the VA examiner noted the Veteran's migraines impact her ability to work due to the severity of her symptoms and frequent visits to her physician for treatment. The examiner noted the Veteran had very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. 

The evidence is in relative equipoise that the Veteran's migraines more closely approximate the criteria for a 50 percent disability rating prior to September 17, 2015. The 50 percent disability rating is the highest schedular rating under DC 8100. 38 C.F.R. § 4.71a. 

TDIU

Total disability exists when an impairment of mind or body is sufficiently incapacitating that it prevents the average person from securing or following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).

A total disability rating may be assigned when the schedular rating is less than 100 percent and the disabled person is unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. See 38 C.F.R. §§ 3.341 (a), 4.16(a). A Veteran's level of education, special training, and previous work experience may be considered as part of a TDIU claim. A Veteran's age or impairment(s) caused by non-service connected disabilities may not be considered as part of a TDIU claim. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.18. The critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

If unemployability is the result of only one service-connected disability, this disability must be rated at 60 percent or more. See 38 C.F.R. § 4.16 (a). If it is the result of two or more service-connected disabilities, at least one disability must be rated at 40 percent or more and the combined disability rating must be 70 percent or more. Id. Disabilities of one or both upper or extremities or one or both lower extremities (to include the bilateral factor), disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system (such as orthopedic disabilities) are considered as one disability for TDIU purposes. Id. 

The Veteran's service-connected disabilities include: migraines at 50 percent disabling, depressive disorder at 50 percent disabling, cold weather injury residuals of the right lower extremity at 30 percent disabling, cold weather injury residuals of the left lower extremity at 30 percent disabling, and bilateral pes planus with plantar fasciitis at 10 percent disabling. The Veteran's combined disability rated is 90 percent. 38 C.F.R. §§ 4.25, 4.26. Therefore, the Veteran has a combined disability rating of at least 70 percent with one disability rated at least 40 percent disabling. 38 C.F.R. §§ 4.16 (a), 4.25.

The Veteran contends she has been unemployed since September 2011 as a result of her service-connected disabilities. The Veteran was previously employed as a customer service representative for a bank. 

In October 2010 VA treatment records, the Veteran reported she experienced daily headaches with nausea that required her to lie in a dark room until they subside. The Veteran stated these headaches lasted approximately a day. In April 2012 VA treatment records, the Veteran reported she was unemployed since September 2011, stating she was terminated due to missing too much work as a result of her health. 

Upon VA examination in September 2014, the VA examiner noted the Veteran's migraines impact her ability to work due to the severity of her symptoms and frequent visits to her physician for treatment. 

During the April 2016 hearing, the Veteran testified that she experiences daily migraines, lasting approximately three to four hours a day, requiring her to lie in a dark room. The Veteran also testified that her migraines cause nausea, sometimes vomiting, and blurred vision. The Veteran also testified that she has had to go to the hospital several times to receive treatment for her migraines, and that treatment disables her from driving. 

Upon VA examination in May 2017, the VA examiner determined the Veteran's depressive disorder caused functional deficits in sedentary occupational settings. Specifically, the VA examiner opined the Veteran's depressed mood, sleep problems, and disturbances in motivation would have a moderate impairment on the Veteran's ability to maintain task persistence and pace. The examiner further opined that the Veteran's anxiety, sleep problems, and mild memory problems would cause moderate impairment on the Veteran's ability to maintain focus, attend to details, and to understand and retain instructions. Lastly, the examiner opined that the Veteran's depressed mood, anxiety, and suspiciousness would cause moderate impairment on the Veteran's ability to work cooperatively and effectively with supervisors, co-workers, and the public. 

After review of all of the evidence, the Board finds that the evidence is in approximate balance and the claim will be granted. The Agency of Original Jurisdiction will establish the effective date of the award based on review of the Board's granting of the claims above. 


ORDER

A disability rating of 30 percent and no higher for cold weather residuals of the left lower extremity effective August 17, 2010 is granted.

A disability rating of 30 percent and no higher for cold weather residuals of the right lower extremity effective August 17, 2010 is granted.

A disability rating of 50 percent and no higher for a migraine headache disorder effective April 11, 2012 is granted. 

A total rating based on individual unemployability is granted.


REMAND

The Veteran was afforded a VA examination in April 2013 to determine the nature and etiology of her low back disorder. However, the VA examiner did not opine as to whether the Veteran's low back disorder is etiologically related to her service-connected cold weather residuals of the bilateral lower extremities. 

Accordingly, the case is REMANDED for the following actions:

1. Contact the appropriate U.S. Government records depository, and obtain any outstanding service treatment records, to include treatment records during the Veteran's period of active duty, active duty for training and inactive duty for training in the U.S. Army Reserve, and associate them with the electronic claims file.

2. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file. Attempt to obtain any records identified by the Veteran and associate these records with the claims file. 

3. Obtain any outstanding VA medical records and associate them with the claims file.

4. After completing the directives above, RETURN THE FILE TO THE APRIL 2013 VA EXAMINER and request that she again review the file and respond to the below inquiries. If that examiner deems it necessary or is otherwise unavailable, schedule the Veteran for an appropriate VA examination to assist in determining the nature and etiology of any low back disorder symptoms. 

THE EXAMINER IS ADVISED THAT BASED ON THE FACTS IN THIS CASE, SHE MUST RESPOND TO THE INQUIRIES BELOW, WITHOUT REGARD TO ANY VA EXAMINATION PROTOCOLS. 

Based upon a review of the relevant evidence, the April 2013 physical examination, and sound medical principles, the VA examiner should opine as to whether the Veteran's low back disorder is etiologically related to her cold weather residuals of the bilateral lower extremities.

The examiner should discuss what significance may be attached to the lay contentions and service treatment records, as well as provide a rationale for any opinion or conclusion expressed. If the VA examiner is unable to provide the requested opinions with what is considered to be a generally accepted degree of medical certainty, i.e., without resorting to speculation, the reasons must be so stated. The VA examiner should, in such case, explain why it would be speculative to respond.

In rendering the above opinions, the examiner must review and discuss the record. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the VA examiner's attention is drawn to the following:

*The February 1994 service treatment record where the Veteran reported recurrent back pain;

*The March 1994 service treatment record where the Veteran reported recurrent back pain;

*The March 1994 separation examination noting the Veteran's spine was normal;

*The June 1994 VA examination noting the Veteran had mechanical type back pain with slightly increased lumbar lordosis;

*The September 2010 VA examination noting the Veteran had low back pain with a normal physical examination and no arthritic type changes on X-ray;

*The May 2012 VA treatment record noting the Veteran believes her back pain is due to carrying heavy equipment in service;

*The November 2013 VA treatment record noting the Veteran had a motor vehicle accident the previous week;

*The April 2016 hearing testimony where the Veteran stated she was told by a VA physician that her low back disorder was a result of her foot disorder;

*The May 2017 VA examination where the Veteran reported pain from her feet radiates into her back and the VA examiner noted bilateral disturbance of locomotion.

After completion of the above and any other appropriate development deemed necessary, readjudicate the issue on appeal on the basis of the additional evidence. If the determination remains adverse to the Veteran, she and her representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs