Citation Nr: 21066949 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 11-32 884 DATE: November 3, 2021 ORDER For the period prior to October 26, 2016, an initial rating of 30 percent, but no higher, for left foot cold injury is granted, subject to the law and regulations governing the payment of monetary awards. From October 26, 2016, entitlement to a rating in excess of 30 percent for left foot cold injury is denied. For the period prior to October 26, 2016, an initial rating of 30 percent, but no higher, for right foot cold injury is granted, subject to the law and regulations governing the payment of monetary awards. From October 26, 2016, entitlement to a rating in excess of 30 percent for right foot cold injury is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a separate compensable rating for tinea pedis is remanded. FINDINGS OF FACT 1. Prior to October 26, 2016, the Veteran's left foot and right foot cold injury residuals have been manifested by signs and symptoms including arthralgia or other pain, cold sensitivity, numbness, locally impaired sensation, nail abnormalities, and osteoarthritis. 2. From October 26, 2016, the Veteran's left foot and right foot cold injury residuals have been manifested by sign and symptoms including arthralgia or other pain, cold sensitivity, numbness, locally impaired sensation, and osteoarthritis. CONCLUSIONS OF LAW 1. For the period prior to October 26, 2016, the criteria for an initial rating of 30 percent, but no higher, for left foot cold injury are met. 38 U.S.C. §§ 1155, 5107 (2012); C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2021). 2. From October 26, 2016, the criteria for a rating in excess of 30 percent for left foot cold injury are not met. 38 U.S.C. §§ 1155, 5107 (2012); C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2021). 3. For the period prior to October 26, 2016, the criteria for an initial rating of 30 percent, but no higher, for right foot cold injury are met. 38 U.S.C. §§ 1155, 5107 (2012); C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2021). 4. From October 26, 2016, the criteria for a rating in excess of 30 percent for right foot cold injury are not met. 38 U.S.C. §§ 1155, 5107 (2012); C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7122 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to December 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2010 and January 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The issues of increased rating for cold injury of the right foot and left foot were previously before the Board in September 2017 and August 2018 when they were remanded for further development. The issue of entitlement to service connection for sleep apnea was previously before the Board in August 2019 when it was remanded for further development. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is seeking increased ratings for his service-connected left foot cold injury residuals and right foot cold injury residuals. Cold injury residuals are rated under 38 C.F.R. § 4.104, Diagnostic Code 7122. Under Diagnostic Code 7122, a 10 percent rating requires arthralgia or other pain, numbness, or cold sensitivity in affected parts. A 20 percent rating requires 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) in 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 in affected parts: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104, Diagnostic Code 7122. Note (1) to Diagnostic Code 7122 instructs the rater to separately evaluate amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, under other diagnostic codes. Separately evaluate other disabilities that have been diagnosed as the residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under Diagnostic Code 7122. Note (2) to Diagnostic Code 7122 states that each affected part is to be evaluated separately and the ratings combined in accordance with 38 C.F.R. § 4.25 and § 4.26. The Veteran underwent a VA examination in September 2009. The Veteran indicated having dry feet, burning pain, some numbness in his toes, and sensitivity to cold. He used over the counter cream for treatment. He did not have Raynaud's phenomenon, documented recurrent fungal infections, skin cancer, arthritis or joint stiffness, changes in skin color, or problems with sleep. Physical examination showed a normal gait and slight thickening, but not overt onychomycosis of nails of the toes. Neurologically he had diminished sensation to microfilament in the foot and toes. He had no weakness or atrophy, no thinning of the skin, and no pain or stiffness of any joint. Dorsalis pedis pulses were 2+. In a July 2010 statement, the Veteran's boss stated that the Veteran complained all the time about his feet and showed him a knot in the bottom of his feet which seemed to grow. He also indicated that the Veteran was slow and walked with a slight limp. In a May 2011 statement, the Veteran's wife stated that he had a growth on his left foot of which he had been complaining. In October 2011, the Veteran stated that he had trouble standing, that his feet hurt, and that he was "peeling like crazy." In December 2012, the Veteran stated that his feet problems made it difficult for him to stand or walk. He had bad circulation, cramps, and a growth on the bottom of his feet. In January 2013 VA treatment records, it was noted that the Veteran had pain and cold sensation to the bilateral lower extremities for the last few months. The Veteran underwent a VA examination in May 2013. The Veteran stated that he could not stand for long periods of time, had trouble wearing shoes, was given inserts, and had a painful growth on his left foot. He also had cold sensitivity and pain. Signs and symptoms in the right foot and the left foot were arthralgia or other pain, cold sensitivity, and nail abnormalities. The Veteran had thick fungal toenails bilaterally, and he stated that his feet would get cold easily and that he would have pain in his feet. X-rays taken in 2009 did not show any evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. The Veteran used a crutch, but for a right knee condition. His condition impacted his ability to work in that it would impact physical labor requiring standing or load bearing due to pain in the feet but would not impair sedentary employment. The Veteran had bilateral onychomycosis, no evidence of neuropathy or vascular disease, and a growth on his left foot. Onychomycosis covered less than 5 percent of total body area. In July 2013 VA treatment records, it was noted that the Veteran had pain on the top and bottom of his feet. In August 2013, the Veteran was noted to have arch pain in both feet, which was worse with increased activity and at the end of the day. Cavus foot was noted. In an August 2013 statement, the Veteran indicated that his left foot gave him problems to the point where he could hardly stand or walk. He continued to have problems with pain and circulation in both legs and feet. He would put Bengay and Aspercreme on his feet every night and would have to sleep with his legs elevated. One of the Veteran's employers stated that he would constantly complain about his feet and that other people would wish that the Veteran would be fired. In March 2014, the Veteran again stated that his feet were making it harder for him to be able to stand. The Veteran's Social Security Administration (SSA) records include a February 2013 internal medicine report, which stated that the Veteran complained of numbness and pain in his feet. He could not wear socks. The physician noticed a growth on his left foot which could be a fibroma or soft tissue tumor. There was no pedal edema and no clubbing. Pedal pulses were well felt. The Veteran had a ganglion in the right foot also. The Veteran underwent a VA examination in August 2016. His symptoms were reported to include daily moderately severe (8/10) foot pain. Treatment was with over-the-counter muscle rub, cyclobenzaprine, and intermittent use of inserts and a walking stick. Signs and symptoms in the right foot and left foot were arthralgia or other pain and numbness. X-rays showed osteoarthritis in both feet. He used a cane on an occasional basis. The Veteran's condition did not impact his ability to work. In September 2016 VA treatment records, the Veteran complained of pain along the dorsal aspect of both feet and sometimes the plantar aspect of the left foot. The plantar fibroma of the left foot decreased in size but still caused discomfort. There was mild callus formation on the right toes, but no sign of ulceration or signs of infection. There were palpable pedal pulses, and the feet were negative for edema. There were complaints of burning and soreness of the feet, but protective sensation was intact. Private podiatry records from September 2016 note that the Veteran had a hard time walking and standing. He could not sleep because his feet hurt. Pain was throbbing, sharp, and achy. He was diagnosed with hammertoes and osteoarthritis. In September 2016, it was indicated that the Veteran also had plantar fascial fibromatosis. He was assessed with plantar fasciitis in October 2016. Also, in October 2016, the Veteran presented with bilateral heel pain that was sharp, throbbing, with a decreased feeling in the foot and night pain. He was diagnosed with hammertoes, plantar fascial fibromatosis, and osteoarthritis. The Veteran's wife indicated in a February 2017 letter that the Veteran continued to have pain in his feet, peeling of dead skin, and dry, dead toenails. He could not go long distances in the car because his legs and feet would hurt, and she and her son had to "wait on him hand and foot" because of pain. Additional SSA records include a February 2017 private podiatry treatment record which notes the Veteran's complaints of major pain in both feet, described as a constant achy and throbbing pain. He also had sharp pain on the plantar aspect of both feet. He used powder for relief and could not let bedsheets touch his toes at night. Sharp/dull sensation and vibratory sensation was diminished in the left lower extremity. He was diagnosed with idiopathic neuropathy. In August and November 2017, the Veteran continued to complain of pain and indicated he could not wear shoes and it hurt for him to walk. He was assessed with metatarsalgia of the bilateral feet. In a March 2018 medical examination, the Veteran described dull, numbing, constant pain in the feet. Prolonged standing, tight shoes, or walking made the pain worse. He was using Voltaren gel for treatment. There was tenderness on both plantar fasciae, no acute synovitis, and gait was normal. He could not walk on the tiptoes or heels. At his May 2018 hearing before the Board, the Veteran stated that he could hardly stand, did not have much feeling in his feet, had problems with cold, and had to wear a certain type of shoe for comfort. He stated that his podiatrist told him that he had high arches, club toes, toe and nail abnormalities, and no cushion in his foot. He used cream for pain and arthritis. In January 2018 VA treatment records, the Veteran reported constant throbbing and numbing pain in the feet. He was having difficulty walking. In May 2018, the Veteran complained of achy pain in the feet. His feet would also feel numb at times. The Veteran underwent a VA examination in November 2018. He reported symptoms that included treatment with Theragesic and Voltaren cream, Tylenol three times a day for general pain, and steroid injection for foot pain. He also wore inserts and orthotic shoes due to arch support and at times wore open toed shoes. Signs and symptoms in both feet were arthralgia or other pain, cold sensitivity, numbness, and nail abnormalities. The Veteran also reported dry skin and nails and discomfort with socks or sheets. The examiner stated that the Veteran had chronic tinea pedis and onychomycosis of the toenails and feet that were related to his cold injuries. X-rays showed evidence of osteoarthritis only. He used a cane and walker on a regular basis for his feet and knees. His cold injury condition impacted his ability to work in that he would need certain types of shoes for prolonged standing. The Veteran underwent another VA examination in December 2018. His symptoms included severe aching, burning, and numbing bilateral foot pain. Pain was worse with prolonged standing, walking, and driving. The Veteran also reported using open toe shoes and custom inserts, and used a walking cane regularly. Signs and symptoms in both feet were arthralgia or other pain, cold sensitivity, numbness, and nail abnormalities. The Veteran also reported dry skin and nails and discomfort with socks or sheets. X-rays showed evidence of osteoarthritis only. He used a cane on a regular basis for his feet. His cold injury condition impacted his ability to work in that he would not be able to do work that required prolonged standing, walking, lifting, or carrying. In April 2019 VA treatment records, the Veteran requested new diabetic shoes for his cold injury to his feet because his feet hurt, and the shoes help him feel better. The Veteran underwent a VA examination in July 2019. He was diagnosed with cold injury of the bilateral feet with residual arthritis, cold sensitivity, and neuropathy. He complained of bilateral foot pain, numbness, and tingling. Signs and symptoms in the right foot and left foot were arthralgia and other pain, cold sensitivity, numbness, locally impaired sensation, and nail abnormalities. X-rays showed evidence of osteoarthritis only. He used a cane and walker on a regular basis. The Veteran's condition impacted his ability to work in that he would be limited in walking, standing, or stair climbing. He would need to change positions and rest frequently. The examiner also indicated that osteoarthritis was a likely sequela of cold injury of the feet. Prior to May 29, 2013 and prior to October 26, 2016 For the period prior to May 29, 2013, the Veteran's rating is currently 10 percent under Diagnostic Code 7122 and for the period from May 29, 2013 to October 25, 2016, the Veteran's rating is currently 20 percent under Diagnostic Code 7122. The Board finds that for the entire period on appeal prior to October 26, 2016, the Veteran's cold injury residuals of the right foot and left foot manifested in signs and symptoms such as arthralgia or other pain, cold sensitivity, as well as nail abnormalities, locally impaired sensation, and osteoarthritis. The September 2009 VA examiner noted the Veteran's statements of burning pain, some numbness in his toes, and sensitivity to cold, and a physical examination showed slight thickening of nails of the toes and diminished sensation to microfilament in the foot and toes. The May 2013 VA examiner noted that the Veteran had signs and symptoms in the right foot and the left foot consisting of arthralgia or other pain, cold sensitivity, and nail abnormalities. The Veteran also had bilateral onychomycosis. The August 2016 VA examiner found signs and symptoms in the right foot and left foot to be arthralgia or other pain and numbness, and x-rays showed osteoarthritis in the right and left feet. September 2016 private records also showed the Veteran to have osteoarthritis. The evidence also showed consistent complaints of trouble walking. The Board also notes that recurrent and persistent symptoms, including foot pain, numbness, cold sensitivity, and nail abnormalities are readily identifiable and capable of lay observation. Accordingly, the Board accepts the Veteran's consistent reports of symptoms such as pain and numbness. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, the Veteran's complaints of symptoms are also consistent with the other evidence of record. As such, the evidence reflects that during this period on appeal, the Veteran's cold injury of the right foot and left foot manifested in arthralgia or other pain, cold sensitivity, as well as nail abnormalities, locally impaired sensation, and osteoarthritis. Therefore, a 30 percent rating is warranted under Diagnostic Code 7122 for the period prior to October 26, 2016. The Board has considered whether a higher rating is warranted under a different diagnostic code. The United States Court of Appeals for Veterans Claims (Court) has held that "when a condition is specifically listed in the [rating] Schedule, it may not be rated by analogy." See Copeland v. McDonald, 27 Vet. App. 333 (2015); see also 38 C.F.R. § 4.20 ("[w]hen an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury"). Applying the Court's holding to this case, because the Veteran has been diagnosed and service connected for cold injury residuals of the right foot and left foot, it would be inappropriate to rate his cold injury disabilities by analogy to other diagnostic codes. Thus, consideration of alternative diagnostic codes is not warranted in this case. From October 26, 2016 From October 26, 2016, the Veteran is already in receipt of a 30 percent rating under Diagnostic Code 7122. A 30 percent rating is the maximum schedular rating available for cold injury residuals. 38 C.F.R. § 4.104, Diagnostic Code 7122. An increased rating is not warranted, because there is no higher schedular rating available and no other Diagnostic Code is more appropriate for rating as the Veteran is service connected for cold injury of the right foot and the left foot. Copeland v. McDonald, 27 Vet. App. 333 (2015). As the Veteran is in receipt of the maximum rating for a cold injury of the right foot and the left foot, the Board need not consider the possible application of 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnston v. Brown, 10 Vet. App. 80 (1997). Entire Appeal Period Separate Rating Regarding the entire appeal period, the Board has considered whether any separate rating is warranted, as provided by Note (1) to Diagnostic Code 7122. Evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The evidence of record shows that the Veteran has not had amputations of toes, or complications of the cold injuries such as squamous cell carcinoma. Further, the medical evidence of record does not reflect a diagnosis of Raynaud's phenomenon or muscle atrophy. The evidence of record does include indications of neuropathy and onychomycosis. However, the Veteran's symptoms of numbness, pain, and loss of sensation, as well as nail thickness and nail abnormalities were relied on to evaluate the severity of the Veteran's cold injury of the right foot and the left foot under Diagnostic Code 7122. Accordingly, a separate compensable rating for peripheral neuropathy and onychomycosis is not warranted, as such would be pyramiding. The record also reflects that the Veteran was assessed as having plantar fasciitis, plantar fascial fibromatosis, and hammertoes in 2016 private podiatry records, metatarsalgia in 2017 private podiatry records, and cavus foot with arch pain in August 2013 VA treatment records. However, as discussed, the Veteran is already being compensated for foot pain under Diagnostic Code 7122, and it has been documented that the Veteran's plantar fasciitis, plantar fascial fibromatosis, metatarsalgia, and high arches have been manifested by pain. Therefore, compensating the Veteran for symptoms of pain resulting from these conditions would result in pyramiding and is not warranted. 38 C.F.R. § 4.14. Also, while the Veteran was assessed as having hammertoes, there is no evidence that suggests that hammertoes are related to the Veteran's cold injury of the right foot and left foot. The VA examiners, most recently the July 2019 VA examiner, did not find hammertoes to be related to the Veteran's cold injuries. Even if his hammertoes were related, the evidence of record would not support an increased disability rating on that basis. Under Diagnostic Code 5282 for hammertoe, a compensable rating may be assigned only if all toes of the foot are affected and there is no evidence of claw foot. 38 C.F.R. § 4.71a. The record also reflects that the Veteran was diagnosed with tinea pedis that was related to the Veteran's cold injuries during the November 2018 VA examination and the Veteran has stated that he suffers from dry and burning feet. As will be addressed below, the issue of entitlement to a separate compensable evaluation for tinea pedis as secondary to the Veteran's cold injury of the right foot and left foot is being remanded. In sum, for the appeal period prior to October 26, 2016, an increased rating of 30 percent, but no higher, is warranted for the Veteran's cold injury of the right foot and the left foot. However, for the period from October 26, 2016, a rating in excess of 30 percent is not warranted. REASONS FOR REMAND Entitlement to service connection for sleep apnea The claim for entitlement to service connection for sleep apnea was remanded in August 2019 for an additional medical opinion. The clinician was directed to address whether it is at least as likely as not that sleep apnea is related directly to the Veteran's service and if not, whether it is at least as likely as not that sleep apnea was caused or aggravated by the Veteran's service-connected unspecified depressive disorder. The clinician was advised that the rationale for the opinion must reflect consideration of the buddy/lay statements from fellow servicemen submitted in support of the claim, which indicate, in essence, that they observed him having symptoms of snoring, stopping breathing while sleeping, and waking up choking and coughing in service. A VA examination was conducted in October 2019. The examiner provided negative nexus opinions in this case, and indicated that there was no evidence that sleep apnea that was diagnosed in 2016 was present in service. The examiner also stated that while there is a history of snoring the Veteran has chronic insomnia and chronic sleep deprivation, which causes his daytime somnolence. However, the examiner did not address the buddy statements from the fellow servicemen in the opinion. The failure to address these statements renders the opinion inadequate. Also, the examiner did not address whether sleep apnea was caused by the Veteran's service-connected unspecified depressive disorder. Substantial compliance with a remand is not discretionary, and failure to substantially comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Remand for an addendum opinion is warranted. Entitlement to a separate compensable rating for tinea pedis As discussed above, the November 2018 VA examiner indicated that the Veteran had tinea pedis as a result of his service-connected cold injury of the right foot and left foot. However, the medical evidence is insufficient for the Board to make an informed determination as to whether the Veteran is entitled to a separate compensable rating for the disability. As such, a VA examination is warranted to clarify the nature and severity of his diagnosed tinea pedis. Also, on remand, any updated VA treatment records must be obtained. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from July 2020 to the present. 2. Forward the Veteran's claims file to the examiner who completed the October 2019 VA sleep apnea examination for an addendum medical opinion. If the VA examiner who provided the October 2019 opinion is not available, then forward the Veteran's claims file to an appropriate VA clinician to obtain a medical opinion on the below questions. The complete claims file and a copy of this Remand must be made available to the reviewing clinician. If another examination of the Veteran is deemed necessary by the clinician providing the opinion, one should be scheduled. Based on the review of the entire record and a copy of this Remand, the examiner must provide opinions as to: a) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea is related to his active duty service. In providing this opinion, the examiner must specifically address the Veteran's lay statements and the buddy statements received in January 2018 and February 2018 from the Veteran's fellow servicemen regarding their observation of his symptoms in service. b) Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's sleep apnea is caused by OR aggravated (any increase in severity beyond the natural progress of the condition) by the Veteran's service-connected unspecified depressive disorder. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his tinea pedis of the right foot and left foot. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, Counsel 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.