Citation Nr: 18157545 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-00 033A DATE: December 13, 2018 ORDER Entitlement to service connection for residuals of frostbite of the bilateral feet is granted. Entitlement to a compensable rating of 10 percent, but no higher, beginning July 6, 2011, for hypertension is granted. Entitlement to an earlier effective date of August 22, 2011 for service connection for bilateral loss of use of lower extremities (previously rated as radiculopathy of left lower extremity and right foot drop), is granted. Entitlement to an earlier effective date of August 22, 2011 for special monthly compensation based on aid and attendance for bilateral loss of use of the lower extremities, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, residuals of frostbite of the bilateral feet are etiologically related to service. 2. The Veteran’s hypertension is not manifested by diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. 3. The Veteran’s initial claim of service connection for a bilateral foot disorder was received on August 22, 2011. 4. The Veteran’s grant of SMC based on the bilateral loss of use of the lower extremities was predicated on the grant of service connection for radiculopathy of the lower left extremity and right foot drop, has an effective date of August 22, 2011. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for frostbite residuals of the bilateral feet have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2017). 2. Resolving doubt in favor of the Veteran, the criteria for an initial compensable rating of 10 percent for hypertension have been met, but no higher, effective July 6, 2011. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.156, 3.321, 4.1, 4.7, 4.104, Diagnostic Code 7101 (2017). 3. The criteria for establishing an effective date of August 22, 2011, for the award of service connection for loss of use of the bilateral lower extremities, has been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.156(c), 3.400 (2017). 4. The criteria for an earlier effective date of August 22, 2011, for the grant of SMC based on the bilateral loss of use of the feet have been met. 38 U.S.C. §§ 1114(p), 5107, 5110 (2012); 38 C.F.R. § 3.350(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in U.S. Army on active duty from October 1983 to September 1992. 1. Entitlement to service connection for residuals of frostbite of the bilateral feet. Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Depending on the types of residuals stemming from a cold injury, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) may apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the instant decision grants service connection on a direct basis, the Board need not consider whether any of the frostbite residuals are considered a “chronic disease” under 38 C.F.R. § 3.309(a). The Veteran alleges he experiences tingling and a red discoloration on top of his feet and this is the result of the frostbite he was diagnosed with during active service. The Veteran contends that while he was stationed in Germany, he was working as a repairman out in the cold weather too long and his feet began to hurt the next day. The Veteran’s service treatment records (STR) show entries in 1989 and 1991 which reflect complaints that document the residuals of a cold injury. See STR entries dated November 20, 1989, December 6, 1989 and February 19, 1991. The Veteran’s military personnel records also confirm his assertion that he was stationed in Germany. His DD-214 reflects that his military occupational specialty (MOS) was power generation equipment repairer. The Veteran was examined by VA in January 2013 but the VA examiner noted the Veteran “had a globally positive exam which precluded making a definite diagnosis.” See January 15, 2013 Cold Injury Residuals DBQ. However, the examiner acknowledged the Veteran’s STR entries which noted the residuals of a cold injury in service and opined “the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury event or illness.” Id. The VA examiner considered the Veteran’s reports of his feet being extremely sensitive to cold weather and further reasoned “he has multiple entries in his military medical record for arthralgias [of] unknown etiology and suggesting a post-cold injury etiology including the dates of 6/25/1992, 2/19/1991, [12/6/1989], 11/20/1989 and [a] physical exam dated 1985 documents [a] foot cold injury.” Id. The Veteran testified before the undersigned at a videoconference hearing that his frostbite residuals manifest in the form of tingling on the top of his feet, discoloration of his feet and toenails as well as a cold sensitivity. The Veteran testified that while he was stationed in Germany, he was working outside during a field mission and although he was wearing boots and wool socks, “I think we [were] out there too long, because we [were] on a mission.” See May 2018 Hearing Transcript at page 30. He stated the next day he experienced pain in his feet and trouble walking. The Veteran explained that although he complained in service about his condition, he was told there was nothing that could be done so he failed to seek further treatment after service. VA recognizes numerous conditions as the chronic effects of cold exposure as set out in the VBA Manual M21-1, III.iv.4.E.2 (Manual), which provides that injury due to exposure to extremely cold temperatures causes structural and functional disturbances of small blood vessels, cells, nerves, skin, and bone. The physical effects of exposure may be acute or chronic, with immediate or latent manifestations. The Manual states that veterans with a history of cold injury may experience the following signs and symptoms at the site of the original injury: chronic fungal infection of the feet; disturbances of nail growth; hyperhidrosis; chronic pain of the causalgia type; abnormal skin color or thickness; cold sensitization; joint pain or stiffness; Raynaud’s phenomenon; weakness of hands or feet; night pain; weak or fallen arches; edema; numbness; paresthesias; breakdown or ulceration of cold injury scars; and vascular insufficiency (indicated by edema, shiny, atrophic skin, or hair loss). The Manual also reflects that VA recognizes that veterans with a history of cold injury include an increased risk of developing conditions such as peripheral neuropathy, squamous cell carcinoma of the skin, at the site of the scar from a cold injury, or arthritis or bone abnormalities, such as osteoporosis, or subarticular punched-out lesions. In this case, the Veteran has reported that he suffers from cold sensitization, tingling, numbness and foot and toenail discoloration, recognized by VA as residuals of cold injury. See, e.g., May 2018 Hearing Transcript at pages, 26, 28-29. The Veteran has provided a competent and credible account of in-service cold injury, and post-service symptoms which he relates are residuals of the in-service cold injury. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Manual provides that service connection for residuals of cold injury should be granted if a cold injury was incurred during military service and an intercurrent nonservice-connected cause cannot be determined. Based on the above, the Board finds the Veteran’s accounts that he was treated for frostbite during his service, and has had residual symptoms since service, to be both competent and credible, with no intercurrent nonservice-connected cause for his foot symptomatology having been identified. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Accordingly, resolving all reasonable doubt in the Veteran’s favor, service connection for residuals of frostbite of the bilateral feet is warranted. 2. Entitlement to a compensable rating for hypertension. Under Diagnostic Code 7101, a rating of 10 percent is warranted for hypertensive vascular disease where the diastolic pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. A 20 percent evaluation requires diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. A 60 percent evaluation requires diastolic pressure of predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken 2 or more times on at least 3 different days. The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104. Initially, the Board notes that the Veteran’s post-service medical records reflect that he requires continuous medication for the control of his hypertension. Although it is not clear that he had a history of diastolic blood pressure of predominantly 100 or more, the VA medical treatment records reflect he was prescribed medication within a fairly short period of time when elevated blood pressure (BP) readings were noted. He also had diastolic readings on several occasions during service which were in the 90s. For example, he had a diastolic blood pressure reading of 100 in February 2001; 90 in July 2002; and 90 in July 2007, 94 in October 2007, 96 in February 2009, 91 in March 2009 and June 2010 and 98 in March 2012. In January 2011, the Veteran reported to his treating VA physician that he was experiencing nosebleeds and this was believed to be due to an increase in BP medication. During the May 2018 videoconference hearing, the Veteran reported he suffers from headaches and dizziness at least a couple times a week, and fatigue almost daily. See May 2018 Hearing Transcript at page 20. The Board reiterates that the law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7. Here, the evidence showing the need for continuous medication for control of the hypertension, and the Veteran’s competent and credible report of the symptoms of headaches, dizziness and fatigue indicates he more nearly approximates the criteria for a compensable rating of 10 percent. As such, he is entitled to at least this rating. The Board further finds the Veteran does not meet or nearly approximate the schedular criteria for a rating in excess of 10 percent for his service connected hypertension. In this case, the record does not reflect his hypertension is manifested by diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. For example, the August 2012 VA medical examination noted blood pressure readings of 138/80, 140/84, and 140/86. A thorough review of the other evidence of record does not reflect the Veteran has blood pressure readings to the extent necessary for a rating in excess of 10 percent under Diagnostic Code 7101. 3. Entitlement to an earlier effective date of August 22, 2011 for service connection for bilateral loss of use of lower extremities (previously rated as radiculopathy of left lower extremity and right foot drop). The Veteran seeks an earlier effective date for the award of service connection for bilateral loss of use of the lower extremities. In a May 2015 rating decision, the RO granted the Veteran service connection for bilateral loss of use of the lower extremities and assigned an effective date of May 21, 2015, the date of receipt of the VA Medical Center letter from the Veteran’s treating physician. In general, except as otherwise provided, the effective date of an evaluation an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For claims of entitlement to service connection the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service, otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i) (2017). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. The Veteran testified at the May 2018 videoconference hearing before the undersigned, that in 2011 he fell down the stairs in his home. He testified that he went to take a step and his feet “didn’t pick up.” See May 2018 Hearing Transcript at page 9. “It just gave out, and I slipped and fell down the stairs.” Id. at 9. He stated that immediately after the fall he remained still for a period of time, but then began to worry that his spouse would be worried if she found him. He testified that he crawled over to the couch after some time before his spouse came home. Id. at 10. After the fall, the Veteran reported that his walk became slower as he became more mindful of each step. Id. at 13. He testified that he had received foot braces a year ago. “Because they finally believed that I kept falling.” See May 2018 Hearing Transcript at page 14. The Veteran testified that it was this incident that prompted him to file his claim in August 2011. He stated that he considered this a worsening of his symptoms as he had fallen, and the fall caused his spouse to move their bedroom downstairs. The Veteran’s spouse described an incident when the Veteran went to get out of a chair and fell. “He was like this -- you know how – he couldn’t catch his balance, so he was like flying.” Id. at 16. His spouse subsequently moved their bedroom to the first floor to prevent the Veteran from using stairs. The Veteran further testified, “And my feet don’t pick up. And, I’ll fall against a door, or all against the wall, or catch myself with a chair.” Id. The Veteran and his spouse are credible and competent to testify about his feet not properly engaging in the step process and his repeated falls. The Board finds that the evidence reflects that the Veteran was experiencing problems associated with bilateral loss of use of the feet, as of the effective date of August 22, 2011, already assigned for his previously rated radiculopathy of left lower extremity and right foot drop. Accordingly, an earlier effective date of August 22, 2011, for the award of service connection for bilateral loss of use of the feet is warranted. 4. Entitlement to an earlier effective date of August 22, 2011, for the award of special monthly compensation based on aid and attendance for bilateral loss of use of the feet. The Veteran seeks an earlier effective date for the award of special monthly compensation based on the need for aid and attendance for bilateral loss of use of his feet based on the provisions of 38 U.S.C. § 1114 (p) (summarized below). He has essentially argued that he has required the aid and attendance of another person since his claim in August 2011 and therefore, should be entitled to receipt of special monthly compensation since that time. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A claim of entitlement to VA benefits may be either a formal or an informal written communication requesting a determination of entitlement or evidencing a belief of entitlement to a benefit. 38 C.F.R. § 3.1(p). A claim must identify the benefit sought. 38 C.F.R. § 3.155(b)(2). VA is required to identify and act on informal claims for benefits and must fully and sympathetically develop a veteran’s claim to its optimum before reaching the claim on its merits. Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009). This requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for [a particular benefit].” Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Where the evidence submitted in support of a claim reasonably raises the issue of a related condition, it is error for the VA not to consider a claim for the related condition. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); See Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). Generally, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Similarly, an effective date for a claim of entitlement to special monthly compensation based on the need for aid and attendance will be, except as provided in 38 C.F.R. § 3.400(o), the date of receipt of claim or date the entitlement arose, whichever is later. However, when an award of compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance shall be awarded for any part of the award’s retroactive period for which entitlement to this additional benefit has been established. Id. Meanwhile, 38 C.F.R. § 3.400(o)(2) states that if a factually ascertainable increase in disability precedes the claim by a year or less, the effective date is the date that the increase is factually ascertainable. Special monthly compensation (SMC) at the aid and attendance rate is payable when a veteran is helpless or so nearly helpless that he requires the regular aid and attendance of another person. 38 U.S.C. § 1114(1). A factor considered in determining the need for regular aid and attendance is whether a claimant can show a factual need for aid and attendance. 38 C.F.R. §§ 3.351(b)-(c), 3.352(a). A factual need for aid and attendance includes the inability to dress, undress, keep ordinarily clean and presentable, feed oneself, or attend to the wants of nature. It also includes either physical or mental incapacity that requires care or assistance on a regular basis to protect against the hazards or dangers incident to a claimant’s daily environment. 38 C.F.R. § 3.352(a). The Board must consider whether a claim for SMC Aid and Attendance (A+A) was made prior to May 21, 2015 and is raised by the record. However, making such a finding in this case requires some earlier communication of record that reasonably identified that SMC A+A might be being sought or an earlier separate pending claim for additional compensation (not already subject to final adjudication) from which a claim for SMC A+A could be inferred. As noted above, the Veteran testified at a videoconference hearing before the undersigned that in 2011 his gait became much slower and that he began falling repeatedly as a result of both his feet not picking up properly. The Veteran’s spouse also testified that she witnessed the Veteran fall on numerous occasions beginning in 2011 and even moved their bedroom to the first floor to accommodate the Veteran after he had fallen down the stairs. The Veteran’s spouse testified that she had to do a lot for the Veteran, as he continued to experience falls. Id. at 17. The Veteran and his spouse are credible and competent to testify about his feet not properly engaging in the step process and his repeated falls. Based on the evidence above, the Board finds an inferred claim for SMC was filed on August 22, 2011, as the Veteran testified his sole basis for filing the claim was that his bilateral foot condition was causing him to fall continually and required aid and attendance from his spouse. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel