Citation Nr: 18113236 Decision Date: 06/21/18 Archive Date: 06/21/18 DOCKET NO. 12-13 372 DATE: June 21, 2018 ORDER Entitlement to an initial disability rating in excess of 20 percent for residuals of a cold injury to the right foot is denied. Entitlement to an initial disability rating in excess of 20 percent for residuals of a cold injury to the left foot is denied. FINDINGS OF FACT 1. The Veteran’s residuals of a cold injury to the right foot are manifested by pain, numbness, cold sensitivity, and nail abnormalities. 2. The Veteran’s residuals of a cold injury to the left foot are manifested by pain, numbness, cold sensitivity, and nail abnormalities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for residuals of a cold injury to the right foot have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7122 (2017). 2. The criteria for an initial disability rating in excess of 20 percent for residuals of a cold injury to the left foot have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7122 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from November 1951 to October 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for cold injury residuals of each foot, and assigned an initial disability rating of 20 percent for each foot, effective July 15, 2011. In February 2013, the Board of Veterans’ Appeals (Board) remanded this case for additional development. In July 2013, the Board denied the claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2014 Order, the Court vacated the Board’s July 2013 decision, and remanded the issues for action consistent with the terms of a Joint Motion for Remand (JMR). In October 2014, the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for development consistent with the 2014 JMR. Upon completion of that development, the Board again denied the Veteran’s appeals in November 2015. The Veteran appealed the denial to the Court, and in July 2016, the Court granted another JMR, vacated the Board’s November 2015 denial, and remanded the matter to the Board for development consistent with the 2016 JMR. In November 2016 and in November 2017, the Board remanded for additional development consistent with the terms of the 2016 JMR. The record reflects substantial compliance with those remand directives. Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (citing Stegall v. West, 11 Vet. App. 268, 271 (1998)). In May 2018, the Veteran’s attorney filed a motion to withdraw representation for good cause; notice of such was sent to the Veteran in accordance with 38 C.F.R. § 20.608 (b)(2). Based on the attorney’s statements in the motion, the Board finds that good cause has been shown. Therefore, the motion is granted and the Veteran is considered unrepresented on this appeal. Higher Initial Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). Section 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 Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran’s cold injury residuals of the feet are evaluated under Diagnostic Code 7122 for cold injury residuals. The Veteran has been assigned an initial 20 percent disability rating for each foot. Diagnostic Code 7122 provides for a 10 percent rating for arthralgia or other pain, numbness, or cold sensitivity. A 20 percent rating 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. A maximum 30 percent rating is warranted for 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, and/or X-ray abnormalities. On VA examination in August 2011, the examiner noted that the Veteran had swelling and cold sensitivity during cold weather. The Veteran reported being able to stand for 15 to 30 minutes and walk one quarter of a mile. He did not use assistive devices. The examiner noted that the Veteran’s cold injury residuals manifested as cold sensitivity in both feet with thickened and deformed toenails, especially in his great toes. Upon examination, his pulses were normal and his feet were warm. Swelling of the dorsum of the feet and lower leg were observable. The examiner concluded that the Veteran’s cold injury residuals did not impact his activities of daily living. The examination report does not show that X-rays were taken of the Veteran’s bilateral feet. On VA examination in November 2011, the Veteran reported cold sensitivity in both feet, especially during winter. He stated that he wore socks to bed. He did not use assistive devices. The examiner noted that no Raynaud symptoms were present. The Veteran had onychomycosis of all toenails. The examiner concluded that the Veteran’s cold injury residuals manifested as cold sensitivity and nail abnormalities. The examiner stated that the Veteran did not have functional impairment such that no effective function remained other than that which would be equally well served by an amputation and prosthesis. The examiner stated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms from a cold injury outside of onychomycosis of the toenails. The examination report does not show that X-rays were taken of the Veteran’s bilateral feet. The August 2011 and November 2011 VA examination reports show that the Veteran’s bilateral feet only demonstrated symptoms of cold sensitivity and nail abnormalities (onychomycosis). The examiner did not note arthralgia or other pain, or numbness. The examiner found that there was no tissue loss, color changes, locally impaired sensation, or hyperhidrosis; however, as no X-rays were taken of the Veteran’s bilateral feet during either examination, neither VA examination report addresses whether the Veteran’s bilateral feet showed X-ray abnormalities. Thus, the Veteran was afforded another VA examination in February 2013 so that X-rays could be taken. At the February 2013 VA examination, the Veteran reported cold sensitivity in his feet such that he wore socks to bed and insulated boots to shovel snow. He stated that he experienced tingling in his feet after 15 minutes of shopping. He also reported swelling. The examiner stated that the Veteran’s cold injury residuals manifested as cold sensitivity and nail abnormalities. The Veteran did not use assistive devices. The examiner stated that the Veteran did not have functional impairment such that no effective function remained other than that which would be equally well served by an amputation and prosthesis. The examiner stated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms from a cold injury outside nail abnormalities, and found that it did not impact his ability to work. X-rays were taken in conjunction with the February 2013 VA examination. They showed mild narrowing of the first metatarsophalangeal (MTP) joint of the right foot with mild sclerosis and degenerative change with probable hammertoe of the lateral four toes. On the left foot, the X-ray showed mild MTP degenerative joint disease at the base of the first metatarsal at the articulation with the first cuneiform. The examiner found that the arthritis was not related to cold injury, and concluded that it was more likely than not age-related. In the 2014 JMR, the parties agreed that the portion of the February 2013 VA examination that discussed the X-ray findings provided an inadequate rationale because the examiner did not provide a sufficient explanation as to why the X-ray findings were not a result of the Veteran’s cold injuries. Pursuant to the 2014 JMR, the Board remanded the matter in October 2014 for an addendum opinion providing a rationale for the conclusion that the Veteran’s arthritis was more likely related to his age as opposed to the cold injuries. Accordingly, in December 2014, the February 2013 VA examiner provided an addendum opinion, and concluded that the X-ray abnormalities are less likely due to the Veteran’s cold injury. The examiner noted that the Veteran’s service treatment records were reviewed and that his separation examination was negative for cold injury residuals. He reported that his post-service treatment consisted of running water over his feet. The examiner noted that this indicated mild cold injuries, and that arthritis would not be expected with mild cold injuries. Significantly, the examiner stated that the February 2013 X-rays showed focal processes, not diffuse. He further stated that cold injury causes diffuse findings, starting at distal toes and moving proximal. The X-rays showed right mild MTP joint space arthritis, indicating wear and tear at the great toe/foot joint, as well as left focal MTP joint space arthritis again at the great toe/foot joint. The examiner noted that this location of arthritis is common in the normal population. The examiner further indicated that the X-rays revealed focal moderate left tarsometatarsal joint space arthritis, indicating, again, focal arthritis in the foot. The examiner concluded that the X-rays were not consistent with diffuse findings of cold residual injuries, but rather, were indicative of focal wear and tear disease of the feet. Therefore, the examiner opined that the X-rays did not support the conclusion that the Veteran’s arthritis was caused by cold injuries. The Veteran was afforded another VA examination in January 2017, as the parties agreed in the 2016 JMR that the February 2013 VA examination revealed evidence of hammertoe deformity of the lateral four toes, and such evidence was not addressed in the examiner’s opinion as to the severity of the Veteran’s bilateral feet. Thus, pursuant to the 2016 JMR, the Board remanded the matter in November 2016 for an addendum opinion that addressed whether hammertoes were related to the cold weather injuries. On VA examination in January 2017, the examiner opined that the Veteran’s hammertoe disability was less likely than not proximately due to, or the manifestation of his cold injury residuals with chronic onychomycosis of the toenails of both feet. The examiner further concluded that the Veteran’s hammertoe disability was more likely than not related to military service from tight fitted combat boots, indicating that hammertoes can develop from tight fitted boots. In a March 2017 rating decision, service connection was subsequently granted for hammertoes as directly due to tight fitting boots and noncompensable ratings were assigned for each foot. While a separate evaluation was granted for the Veteran’s hammertoe disability, the question of whether the hammertoes were related to the cold injury remained relevant, as they could serve as a basis for a higher rating if rated as part of the cold injury residuals. As previously indicated, under Diagnostic Code 7122, a maximum 30 percent rating is warranted for 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, and/or X-ray abnormalities. 38 C.F.R. § 4.104, Diagnostic Code 7122. As the January 2017 VA examiner did not provide a rationale for his opinion that it was less likely than not that the hammertoes were related to the Veteran’s cold injuries, the Board accordingly remanded the matter in November 2017 for an addendum opinion. Pursuant to the November 2017 Board remand, a VA addendum opinion was provided later in November 2017. The examiner reiterated that the Veteran’s hammertoe disability was less likely a residual of or a result of the service-connected cold injuries. The examiner explained that hammertoes are usually of mechanical origin. The examiner noted that after an extensive literature review, he was unable to find any documentation from reliable and well-renowned sources that mentioned hammertoes being due to or a result of cold injuries. The examiner further noted that sources such as Mayo Clinic and the American Academy of Orthopedic Surgeons do not make mention of this relationship. Moreover, he indicated that hammertoes do have specific causations; however, cold injury and/or exposure is not one of them, as there is no mention or suggestion in the literature that supports such a relationship. Thus, the examiner concluded that the Veteran’s hammertoe disability was less likely due his cold injuries. Instead, they are likely of mechanical origins. A review of the Veteran’s VA treatment records does not reveal any evidence different from that revealed in the above examinations. Based on the foregoing, the Board finds that the medical records do not demonstrate findings consistent with a rating in excess of 20 percent for either foot for cold injury residuals. While the evidence shows that the Veteran’s bilateral feet demonstrate nail abnormalities and X-ray abnormalities, as clearly explained in the December 2014 and November 2017 addendum opinions, the February 2013 X-ray abnormalities are not related to the Veteran’s cold injuries. These opinions are competent and probative as they were supported with cogent rationale. There is no competent and persuasive opinion to the contrary. Therefore, as it relates to the Veteran’s bilateral foot cold injury residuals, he does not have two or more of the listed symptoms in addition to arthralgia or other pain, numbness, or cold sensitivity, which is required to meet the criteria for a 30 percent rating. 38 C.F.R. § 4.104 (2017). Furthermore, as the evidence shows that the hammertoes are not related to the cold injuries, they do not serve as a basis for a higher rating. Accordingly, a 30 percent rating for either foot is not warranted. The Board has considered the Veteran’s statements with respect to the severity of his bilateral foot disability. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). While the Veteran is competent to provide evidence regarding his observable symptoms, such as pain and tenderness, as a lay person he is not competent to determine whether specific orthopedic manifestations are related to cold injury residuals as opposed to some other etiology. This determination requires medical training and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds that the examiners’ opinions and clinical findings are more probative than the Veteran’s subjective reports of increased symptomatology in determining whether a higher disability rating is warranted. For these reasons, the Board finds that at no time during the period on appeal has the bilateral foot disability warranted more than a 20 percent evaluation for either foot. See Hart v. Mansfield, 21 Vet. App. 505 (2007). As the preponderance of the evidence is against the claims, the benefit of the doubt provisions are inapplicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 56. Accordingly, the Veteran’s request for a higher initial rating for each foot is denied. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel