Citation Nr: 18147507 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 18-26 432 DATE: November 5, 2018 ORDER An initial rating in excess of 20 percent for cold injury residuals of the right foot is denied. An initial rating in excess of 20 percent for cold injury residuals of the left foot is denied. FINDING OF FACT For the entire initial rating period on appeal, the Veteran’s residual cold injuries of the right and left foot were manifested by numbness and x-ray evidence of osteoarthritis, but with no evidence of tissue loss, nail abnormalities, color changes, locally impaired sensation, or hyperhidrosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for residual cold injuries of the right foot are not met. 38 U.S.C §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7122 (2017). 2. The criteria for a rating in excess of 20 percent for residual cold injuries of the left foot are not met. 38 U.S.C §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7122 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from February 1952 to January 1954. During the pendency of the appeal, in June 2016, VA was notified of the Veteran’s death. The appellant in this case is the Veteran’s surviving spouse who met the basic eligibility for substitution for this appeal. The Board notes that in cases where the Veteran died after October 10, 2008, and there is already a substitute, the appeal is processed as normal, because the substitute stepped into the shoes of the deceased Veteran. See 38 C.F.R. § 3.1010(a). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Laws and Analysis Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s frostbite residuals have been evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7122 (2017), which specifically addresses residuals of cold weather injury residuals. Pursuant to DC 7122, a 10 percent disability rating is warranted for arthralgia or other pain, numbness, or cold sensitivity. A 20 percent disability rating is warranted for such symptomatology, plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 30 percent disability rating is warranted for such symptomatology, plus two or more of the symptoms described in the criteria for a 20 percent disability rating. The Veteran underwent a VA examination for cold injury residuals in June 2015, at which time the examiner confirmed a diagnosis of bilateral foot cold injury residual paresthesia. The Veteran reported numbness of the lower extremities. The examiner noted bilateral intermittent numbness, paresthesia, with x-ray evidence of osteoarthritis. It was noted that the Veteran was using a cane occasionally for stability while walking. Lastly, the examiner noted that the Veteran’s cold injury residuals did not impact his ability to work. Subsequent VA treatment records continued to show complaints of numbness and swelling, but with no evidence of tissue loss, nail abnormalities, color changes, locally impaired sensation, or hyperhidrosis. In his August 2015 notice of disagreement, the Veteran indicated that he believed that he had “the symptomatology described (at least 2) to qualify for 30%” disability rating; however, he did not mention what symptoms from the criteria for a 30 percent he experienced. In the March 2018 substantive appeal, the appellant indicated that the Veteran was a Korean War Veteran and often talked about the freezing cold and snow that he experienced. She further stated that he had many problems with his extremities as a result of frostbite. After a careful review of the evidence, lay and medical, the Board finds that a rating higher than 20 percent is not warranted for either the right or left foot. Notably, the Veteran has evidence of numbness and x-ray evidence of osteoarthritis associated with his cold weather injury. Nevertheless, the medical record does not show that he had an additional symptom of tissue loss, nail abnormalities, color changes, locally impaired sensation, or hyperhidrosis, which is required by the criteria for a 30 percent disability rating. The documented symptoms of numbness and x-ray evidence of osteoarthritis are properly contemplated by the assigned 20 percent disability rating. While the Veteran noted that he believed he had other symptomatology that warranted a higher rating, and the appellant stated that he had “many problems” associated with the frostbite injury, those statements were vague, did not specify any symptoms, and not supported by the documented competent lay and medical evidence. For these reasons, the Board finds that, for the entire initial rating period on appeal, ratings in excess of 20 percent for cold injury residuals of the right and left foot are not warranted. ROMINA CASADEI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel