Citation Nr: 20007014 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-52 529 DATE: January 28, 2020 ORDER Entitlement to a rating of 30 percent for the entirety of the appeal period for cold injury residuals of the right foot is granted. Entitlement to a rating of 30 percent for the entirety of the appeal period for cold injury residuals of the left foot is granted. FINDINGS OF FACT 1. Throughout the appeal the Veteran’s cold injury residuals of the right foot manifested in cold sensitivity and nail deformity and locally impaired sensation (paresthesias). 2. Throughout the appeal the Veteran’s cold injury residuals of the left foot manifested in cold sensitivity and nail deformity and locally impaired sensation (paresthesias). CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 30 percent for cold injury residuals of the right foot have been met. 38 U.S.C. §§ 1154, 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.87, 4.104, Diagnostic Code (DC) 7122. 2. The criteria for entitlement to an initial rating of 30 percent for cold injury residuals of the left foot have been met. 38 U.S.C. §§ 1154, 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.87, 4.104, Diagnostic Code (DC) 7122. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1960 to May 1963. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The rating decision granted service connection for the Veteran’s cold injury residuals and assigned an initial disability rating of 10 percent for each foot. These claims were previously before the Board in December 2017, when the Board remanded for a VA examination with radiographic testing/imaging to determine the severity of the Veteran’s cold injury residuals. The examination and radiological report were obtained. Thus, the Board finds that there has been substantial compliance with the Board’s remand. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010). An interim rating decision in September 2019 granted increased ratings of 30 percent for each of the Veteran’s feet from June 10, 2019. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). As an initial matter, the Board is aware that the Veteran filed a September 2019 claim for an earlier effective date of his service-connected right and left foot cold injury residuals. An October 2019 rating decision denied the claims, and in December 2019 the Veteran requested reconsideration. The Veteran has not selected to have his claim reviewed as a Board Appeal under the Appeals Modernization Act and the claim is not before the Board. Regardless, the Board notes that this decision does grant the maximum schedular rating from the date of the original claim. In the January 2020 informal hearing presentation, the Veteran’s representative asserted that the 30 percent rating was warranted throughout the appeal period. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Cold injury residuals of the right foot 2. Cold injury residuals of the left foot The Veteran contends that his cold injury residuals of the right and left feet warrant higher ratings. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 U.S.C. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration. Staged ratings may be appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. Lay evidence may be competent to address any matter not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Cold injury residuals are rated separately for each affected part (e.g. hand, ear, nose) under 38 C.F.R. § 4.104, DC 7122. A 10 percent rating is warranted 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 (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 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, X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). A 30 percent rating is the maximum rating allowed under this Diagnostic Code. Amputations of fingers or toes are to be rated separately, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy are to be rated under other diagnostic codes. Id. at Note (1). Other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud’s phenomenon, muscle atrophy, etc., are to be rated separately, unless they are used to support a rating under Code 7122. Each affected part (e.g., hand, foot, ear, nose) is to be rated separately and the ratings are to be combined in accordance with 38 C.F.R. § 4.25 and 4.26. 38 C.F.R. § 4.104. Id. at Note (2). The Veteran’s representative argued in a January 2020 presentation that DC 8521 applies in this case. Here, the evidence of record does not show that the Veteran has amputations of the fingers or toes or complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy. Additionally, an April 2019 VA examination shows the Veteran’s external popliteal (common peroneal) nerve as normal bilaterally. As such, a separate rating for paralysis of the foot, as contemplated by DC 8521, is not warranted under Note 1 to DC 7122. The Veteran’s reports of numbness and locally impaired sensation are considered under the current ratings under DC 7122; therefore, the same symptoms cannot be separately rated under another DC as that would result in prohibited pyramiding. 38 C.F.R. § 4.14. The Veteran’s initial disability rating of 10 percent for each foot was based on a June 2015 VA examination that showed the Veteran’s symptoms to be cold sensitivity and numbness bilaterally. The examiner specifically noted that no other pertinent symptoms, such as arthralgia, nail abnormalities, color changes, locally impaired sensation, tissue loss, and/or hyperhidrosis were found. The examiner also noted that there were no significant diagnostic test findings. However, the Veteran has reported that he has had severely thick, hard, discolored toenails since his initial cold injury in service. See December 2017 VA treatment records, August 2019 VA examination. Further, during the 2015 examination the Veteran reported that “he does have some paresthesias described as pins and needles sensation.” The Veteran is competent to identify the onset and duration of observable symptoms, such as thick or discolored nails and a pins and needles sensation. The Veteran’s statements regarding his toenail abnormalities are consistent and they are bolstered by the December 2017 VA treatment records, which state that the Veteran’s dystrophic nail condition is a common finding associated with severe cold injury. Likewise, the Veteran also reported numbness and tingling of the feet in a March 2017 VA treatment record. The Board finds the Veteran’s statements are credible. A December 13, 2017 radiology report showed the Veteran’s left foot normal except for demineralization and less calcification. The Veteran’s right foot was shown as normal except for demineralization, surgery of the fifth toe, plantar calcaneal sur, and vascular calcification. An October 2019 private Disability Benefits Questionnaire (DBQ) opines that, due to findings of “demineralization” on the December 2017 radiology report, the Veteran has osteoporosis. Further, December 2017 VA treatment records show that the Veteran has chronic pain, severely dystrophic toenails, and diminished sensation in the bilateral feet. The podiatrist explained to the Veteran that his severe nerve-type symptoms, arthritis-type symptoms, and dystrophic nail conditions are all common findings associated with severe cold injury and should be considered permanent. Finally, a February 2018 private DBQ shows arthralgia, cold sensitivity, numbness, nail abnormalities, and locally impaired sensation in each the Veteran’s right and left foot. The evidence for and against the Veteran’s claim for a higher initial rating of his service-connected cold injury residuals is at least in equipoise. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to an initial rating of 30 percent is granted for the Veteran’s cold injury residuals of each foot throughout the appeal. Thus, considering the foregoing, an increased rating of 30 percent is warranted for the Veteran’s cold injury residuals of each foot from the date of claim. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.