Citation Nr: 1815367	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  13-32 582	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for residuals of frostbite of the right foot.

2. Entitlement to a disability rating in excess of 10 percent for residuals of frostbite of the left foot.


REPRESENTATION

Veteran represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

C. Davidoski, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1954 to April 1956.  

This current matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the San Juan Regional Office (RO) of the Department of Veterans Affairs (VA). The Board has recharacterized the issues on appeal as above to better reflect the Veteran's contentions. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012). 


FINDING OF FACT

The service-connected residuals of frostbite of the Veteran's feet are productive of pain, numbness, cold sensitivity, hyperhidrosis, and impaired sensation.


CONCLUSIONS OF LAW

1.  The criteria for a disability rating of 30 percent for the service-connected residuals of frostbite of the right foot have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7122 (2017).

2.  The criteria for a disability rating of 30 percent for the service-connected residuals of frostbite of the left foot have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7122 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The duty to notify has been met.  See VA correspondence dated August 2010.  The Veteran and his representative have not alleged prejudice with regard to notice.  Thus, nothing more is required.

In addition, all identified and authorized records relevant to the matter have been requested or obtained.  The available record includes service treatment records, VA treatment and examination reports and statements in support of the claim.  The Board finds that there is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  The medical opinion obtained in this case is adequate as it is predicated on a substantial review of the record and medical findings and considers the Veteran's complaints and symptoms. Thus, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).  The available medical evidence is sufficient for adequate determinations.  There has been substantial compliance with all pertinent VA law and regulations, and to adjudicate these claims would not cause any prejudice to the Veteran.

Neither the Veteran nor his representative has raised any issues with the duties to notify or assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II.  Increased Ratings

The Veteran was granted service connection for his "frostbite feet" in a December 1958 rating decision.  The RO assigned an initial noncompensable rating, effective September 15, 1958, the date his claim for service connection was received.  The Veteran did not perfect an appeal on the initial rating decision.  

In June 2010, the Veteran filed a claim for an increased rating for the cold injury residuals of his feet.  In a February 2011 rating decision, the RO granted an increased evaluation of 10 percent for each foot, effective June 4, 2010, the date his claim for an increased rating was filed.  This appeal ensued.

The Veteran seeks ratings higher than 10 percent for the service-connected residuals of frostbite of his feet.  Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1.  Separate diagnostic codes identify various disabilities and the criteria for specific ratings.  If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.1.  After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 

The frostbite residuals of the Veteran's feet have each been evaluated as 10 percent disabling throughout the appeal period under Diagnostic Code 7122.  Pursuant to Diagnostic Code 7122, a 10 percent evaluation is warranted for arthralgia or other pain, numbness or cold sensitivity.  A 20 percent evaluation is warranted for 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.

Note (1) 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.  Note (2) provides that each affected part is to be evaluated separately.  38 C.F.R. § 4.104, Diagnostic Code 7122.

After reviewing all of the lay and medical evidence, the Board finds that the frostbite residuals of the Veteran's feet each warrants a 30 percent evaluation for the entire appeal period.  The Veteran was afforded a VA examination for his cold injury residuals in December 2010.  The Veteran reported intermittent aching pain in the tips of his toes, arches of feet, and joints of toes of both feet.  He also reported having severe cold sensitivity, a history of Raynaud's syndrome, hyperhidrosis, sleep disturbances due to his symptoms, arthritis or joint stiffness, and a history of severe numbness in both feet.  The Veteran denied any history of abnormal color or recurrent fungal infections.  Sensory examination revealed decreased pain/pinprick sensation of both feet.  The examiner did not find evidence of muscle atrophy, abnormal muscle tone, Raynaud's, ulceration, scars, edema, or decreased strength in either foot.  His skin texture, temperature, thickness, moisture, and color were normal, and there was no tissue loss.  Hair growth was absent, and nails were unaffected.  Dorsalis pedis and posterior tibial pulses were decreased in both feet.  A nerve conduction study showed no evidence of peripheral neuropathy.   

VA treatment records were reviewed and revealed similar findings as shown on the December 2010 VA examination, including an August 2009 foot examination where decreased sensation was noted in the bilateral feet.

In June 2011, the Veteran submitted a written statement with his notice of disagreement with the February 2011 rating decision.  Therein, he stated that he suffered constant pain, numbness, tissue loss, occasional color changes with intense pain, and arthritis due to his frostbite injuries.

The Board finds that the Veteran is entitled to 30 percent evaluations for his bilateral feet cold injury residuals.  At the December 2010 VA examination, the Veteran reported hyperhidrosis of the feet and, upon examination, decreased pinprick sensation was noted in both feet.  VA treatment records also revealed that the Veteran experienced decreased sensation in both feet.  Therefore, after a review of all of the evidence of record for the appeal period, the Board finds that the Veteran's cold injury residual symptoms of both feet include, not only pain, numbness and cold sensitivity, but also hyperhidrosis and impaired sensation.  In addition, the Veteran reported symptoms in his notice of disagreement which were not reported at the December 2010 VA examination.  However, a determination as to whether those symptoms truly exist is unnecessary, as the benefit sought on appeal can be granted without consideration of that statement.  As such, 30 percent ratings are warranted for each foot for the entire period on appeal, and there are no staged ratings to be applied.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

A 30 percent evaluation is the maximum schedular evaluation available under Diagnostic Code 7122.  Consequently, a schedular rating in excess of 30 percent cannot be assigned.  The Board also finds that there are no other potentially applicable diagnostic codes.  Although the December 2010 VA examination report indicated that the Veteran described a history of Raynaud's phenomenon, the examiner found that Raynaud's was not present on examination.  Also, the Board has reviewed VA treatment records from the appeal period and found no current diagnosis or opinion of record linking a current diagnosis of Raynaud's phenomenon to the Veteran's in-service cold injury.  As such, Diagnostic Code 7117 is not to be applied in this case. 38 C.F.R. § 4.104, Diagnostic Code 7117.

The Board has considered whether the Veteran's claims should be referred for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b), which is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Significantly, the Board finds that referral for extraschedular consideration is not warranted in this case. The Veteran complained of symptoms which are all specifically contemplated by the pertinent rating criteria.  38 C.F.R. § 4.104, DC 7122.  In this regard, the Board concludes that there is nothing exceptional or unusual about the Veteran's disability picture, and that the rating criteria under DC 7122 adequately describes his disability level and symptomatology.  Thun v. Peake, 22 Vet. App. 111, 115  (2008).  Thus, referral for extraschedular consideration is not warranted.

ORDER

A rating of 30 percent for the service-connected residuals of frostbite of the right foot is granted, subject to the laws and regulations governing the award of monetary benefits.

A rating of 30 percent for the service-connected residuals of frostbite of the left foot is granted, subject to the laws and regulations governing the award of monetary benefits.


____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs