Citation Nr: 20003036 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-20 618 DATE: January 14, 2020 ORDER Entitlement to a rating in excess of 10 percent for cold weather residuals of the left foot is denied. Entitlement to a rating in excess of 10 percent for cold weather residuals of the right foot is denied. Entitlement to an initial rating in excess of 20 percent for peripheral arterial disease of the right lower extremity (PAD RLE) is denied. Entitlement to an initial rating in excess of 20 percent for peripheral arterial disease of the left lower extremity (PAD LLE) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s bilateral cold weather residuals has more nearly approximated pain, numbness, and cold sensitivity. 2. The Veteran’s peripheral arterial disease of the bilateral lower extremities has not manifested in claudication on walking more than 100 yards, nor diminished peripheral pulses or ankle/brachial index of 0.9 or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for cold weather residuals of the left foot have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7122. 2. The criteria for entitlement to a rating in excess of 10 percent for cold weather residuals of the left foot have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7122. 3. The criteria for entitlement to an initial rating in excess of 20 percent for PAD RLE have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7115. 4. The criteria for entitlement to an initial rating in excess of 20 percent for PAD LLE have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7115. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to July 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that the Veteran was scheduled to appear for a hearing in July 2019. The Veteran submitted a June 2019 correspondence requesting that the hearing be cancelled. As such, the Board finds that the hearing request was withdrawn. Additionally, the Veteran submitted a March 2018 Appeals Satisfaction Notice, signed and submitted by him. However, a review of the record indicates that the Veteran’s representative submitted a June 2019 Correspondence asserting that the Veteran wished to proceed with the Appeal. The Board finds that this matter is still in appellate status. Further, the Board notes that the Veteran’s October 2014 claim included a claim for bilateral frostbite generally. In a March 2018 Supplemental Statement of the Case, the RO rated the Veteran’s bilateral feet condition under two separate rating codes. See 38 C.F.R. § 4.104, Diagnostic Code 7115 and 7122. As such, all four issues are properly before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 10 percent for bilateral cold weather residuals The Veteran contends that his service-connected bilateral cold weather residuals warrant a higher rating. The Veteran is rated under 38 C.F.R. § 4.104, Diagnostic Code 7122 for cold weather residuals. A 10 percent rating is warranted when there is evidence of arthralgia or other pain, numbness, or cold sensitivity. A higher 20 percent rating cannot be achieved without these symptoms, plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A review of the medical evidence establishes that the only symptoms or findings relevant to his cold injury residuals in the bilateral feet were numbness, pain, and cold sensitivity which are directly contemplated by a 10 percent disability rating. The Veteran submitted a July 2019 private medical examination from Dr. J.A.K concerning his bilateral foot condition. The Board notes that this examination was completed on a VA disability benefits questionnaire form. Upon examination, the private physician found that the Veteran exhibited cold sensitivity, numbness, and locally impaired sensation in the left and right feet. There were no x-ray abnormalities noted in the bilateral feet, the Veteran did not require the use of assistive devices for locomotion, and there was no functional impairment so severe that it would be equally well-served by an amputation with prosthesis. The April 2015, November 2015, February 2017 and January 2018 VA examinations also failed to demonstrate any tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). As the Veteran exhibited merely cold sensitivity, without tissue loss, nail abnormalities, color changes, or locally impaired sensation, the RO properly awarded a 10 percent rating under Diagnostic Code 7122. At no time during the appellate period does the evidence support a finding greater than 10 percent. Accordingly, the Veteran’s appeal is denied. 2. Entitlement to a rating in excess of 20 percent for bilateral lower extremity peripheral arterial disease The Veteran contends that his service-connected bilateral lower extremity PAD warrants a higher disability rating. Under Diagnostic Code 7115, a 20 percent rating, which is the minimum compensable rating available under this code, is assigned for thrombo-angitis obliterans with claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. A 40 percent rating is assigned for thrombo-angitis obliterans with claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less. A 60 percent rating is assigned for thrombo-angitis obliterans with claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. A 100 percent rating is assigned for thrombo-angitis obliterans with ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less. 38 C.F.R. § 4.104, Diagnostic Code 7115. The Veteran submitted a July 2019 private medical examination from Dr. J.A.K concerning his bilateral PAD. The Board notes that this examination was completed on a VA disability benefits questionnaire form. The examiner noted that the Veteran experienced pain due to cold intolerance in both of his feet, likely at two percent. The examiner found that the Veteran did not have any current symptoms related to his PAD. The April 2015, November 2015, February 2017 and January 2018 VA examinations are consistent with the Veteran’s treatment records, which do not indicate any medical visits or symptomatology related to his PAD. The evidence of record does not support a finding that the Veteran’s bilateral lower extremity PAD, manifested beyond claudication (cramping) on walking more than 100 yards, and diminished peripheral pulses or an ankle/brachial index of 0.9 or less. The Board has also considered whether the Veteran may be awarded a compensable evaluation under an alternative diagnostic code. In this regard, Diagnostic Code 7121 provides for a 10 percent evaluation where there is intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery. 38 C.F.R. § 4.104, Diagnostic Code 7121. However, the evidence of record does not show that the Veteran’s bilateral lower extremity PAD, has manifested in any of these symptoms, or similar symptoms. As such, the Veteran’s claim for increased rating is denied. In reaching such a conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against these claims, that doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. James DeFrank Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board, R. Smith Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.