Citation Nr: 21009110 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-17 987 DATE: February 19, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of cold injury of the left hand is denied. From November 15, 2020, entitlement to a rating of 20 percent, but no higher, for peripheral neuropathy of the left hand is granted. Entitlement to a rating in excess of 20 percent for residuals of cold injury of the right hand is denied. From November 15, 2020, entitlement to a rating of 20 percent, but no higher, for peripheral neuropathy of the right hand is granted. Entitlement to a rating in excess of 10 percent for residuals of cold injury of the right foot is denied. From November 15, 2020, entitlement to a rating of 10 percent, but no higher, for peripheral neuropathy of the right foot is granted. Entitlement to a rating in excess of 10 percent for residuals of cold injury of the left foot is denied. From November 15, 2020, entitlement to a rating of 10 percent, but no higher, for peripheral neuropathy of the left foot is granted. FINDINGS OF FACT 1. The Veteran’s residuals of cold injury of the left hand is manifested by, at worst, arthralgia/ shooting pain, cold sensitivity, and numbness. 2. From November 15, 2020, the Veteran’s peripheral neuropathy of the left hand is associated with his service-connected cold injury and is manifested by, at worst, mild incomplete paralysis of the radial, median, and ulnar nerves. 3. The Veteran’s residuals of cold injury of the right hand is manifested by, at worst, arthralgia/ shooting pain, cold sensitivity, and numbness. 4. From November 15, 2020, the Veteran’s peripheral neuropathy of the right hand is associated with his service-connected cold injury and manifested by, at worst, and mild incomplete paralysis of the radial, median, and ulnar nerves. 5. The Veteran’s residuals of cold injury of the right foot is associated with his service-connected cold injury and manifested by, at worst, arthralgia/ shooting pain, cold sensitivity, and numbness. 6. From November 15, 2020, the Veteran’s peripheral neuropathy of the right foot is associated with his service-connected cold injury and manifested by, at worst, mild incomplete paralysis of the musculocutaneous and internal popliteal nerves. 7. The Veteran’s residuals of cold injury of the left foot is manifested by, at worst, arthralgia/ shooting pain, cold sensitivity, and numbness. 8. From November 15, 2020, the Veteran’s peripheral neuropathy of the left foot is associated with his service-connected cold injury and manifested by, at worst, mild incomplete paralysis of the musculocutaneous and internal popliteal nerves. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of cold injury of the left hand have not been met. 38 U.S.C. § 1155; C.F.R. § 4.104, Diagnostic Code 7122. 2. From November 15, 2020, the criteria for a rating of 20 percent, but no higher, for peripheral neuropathy of the left hand have been met. 38 U.S.C. § 1155; C.F.R. § 4.124a, Diagnostic Code 8514. 3. The criteria for a rating in excess of 20 percent for residuals of cold injury of the right hand have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7122. 4. From November 15, 2020, the criteria for a rating of 20 percent, but no higher, for peripheral neuropathy of the right hand have been met. 38 U.S.C. § 1155; C.F.R. § 4.124a, Diagnostic Code 8514. 5. The criteria for a rating in excess of 10 percent for residuals of cold injury of the right foot have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7122. 6. From November 15, 2020, the criteria for a rating of 10 percent, but no higher, for peripheral neuropathy of the right foot have been met. 38 U.S.C. § 1155; C.F.R. § 4.124a, Diagnostic Code 8524. 7. The criteria for a rating in excess of 10 percent for residuals of cold injury of the left foot have not been met. 38 U.S.C. § 1155; C.F.R. § 4.104, Diagnostic Code 7122. 8. From November 15, 2020, the criteria for a rating of 10 percent, but no higher, for peripheral neuropathy of the left foot have been met. 38 U.S.C. § 1155; C.F.R. § 4.124a, Diagnostic Code 8524. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1977 to July 1984. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, NC. In October 2020, the Board remanded the claims to obtain current examinations. Based on the rating schedule directing that adjudicators rate complications such as peripheral neuropathy when determining the appropriate ratings for residuals of cold injury, the Board finds this question of ratings for peripheral neuropathy to be before it as an appellate issue. 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 evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Cold Injury Residuals Cold injury residuals are rated under 38 C.F.R. § 4.104, Diagnostic Code 7122. A 20 percent is assigned for cold injury manifested by arthralgia or other pain, numbness, or cold sensitivity plus: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, sub-articular punched out lesions, or osteoarthritis). A maximum 30 percent rating is assigned for cold injury manifested by arthralgia or other pain, numbness, or cold sensitivity plus 2 or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punch out lesions, or osteoarthritis). Note (1) to Diagnostic Code 7122 provides that amputations of fingers or toes and complications at the site of a cold injury scar or peripheral neuropathy should be evaluated separately. Note (1) to Diagnostic Code 7122 also provides that other disabilities that have been diagnosed as the residual effects of cold injuries, such as Raynaud’s phenomenon, muscle atrophy, etc., should be evaluated separately unless they are used to support an evaluation under Diagnostic Code 7122. See 38 C.F.R. § 4.104, Diagnostic Code 7122, Note (1). Note (2) provides that each affected part should be evaluated separately and the ratings then combined in accordance with §§ 4.25 and 4.26. See 38 C.F.R. § 4.104, Diagnostic Code 7122, Note (2). 1. Entitlement to a rating in excess of 10 percent for residuals of cold injury, left hand. The Veteran contends that his residuals of cold injury of the left hand has worsened and warrants a rating in excess of 10 percent. The VA received the Veteran’s claim for an increased rating in December 21, 2015. His appeal stems from such date. July 2017 VA treatment records show that his skin is warm and soft, without discoloration or lesions. December 2019 VA treatment records show skin is warm and dry, with no rashes or legions. Upon remand, the Veteran underwent a VA examination in November 2020. Left hand cold injury residuals showed arthralgia or other pain, cold sensitivity, and numbness. He complained of shooting pain, numbness and cold sensitivity. There was no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. There was no functional impairment such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner stated that there is a worsening of the Veteran’s symptoms but no change to the service-connected diagnosis and no additional diagnoses rendered. The Board finds that the Veteran’s symptoms are consistent with a 10 percent rating. After careful review of the record, the evidence does not show an additional symptom of tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, sub-articular punched out lesions, or osteoarthritis), as required for the higher 20 percent rating. The Board has considered the doctrine of reasonable doubt but determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b). The Board will now consider whether separate ratings are warranted. November 2020 VA examination shows a diagnosis of right upper extremity peripheral neuropathy secondary to cold injury, to include numbness, paresthesia, and pain. Right upper extremity showed mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. He had mild incomplete paralysis of the radial, median, and ulnar nerves. Sensory tests showed decreased sense of touch. The peripheral sensory neuropathy represents a separate diagnosis than the residuals of cold injury, based on separate symptomatology based on some degree of paralysis, which is not a manifestation outlined under the code for cold injury. Thus, separate ratings would not be cumulative or violate the rule against pyramiding. See Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14. Although Diagnostic Code 7122 contemplates symptoms such as numbness, pain, and cold sensitivity, the rating code does not contemplate paralysis of the nerves affective in the hand, which is addressed by the codes for peripheral neuropathy. See 38 C.F.R. § 4.124a, DCs 8514-8716. Indeed, Note (1) of Diagnostic Code 7122 specifically provides that peripheral neuropathy, described in this case as mild incomplete paralysis of the nerves, should be separately evaluated. Based on the above, the Board finds the Veteran is entitled to separate ratings for the hand under both Diagnostic Code 7122 and Diagnostic Codes pertaining to the peripheral nerves. After considering the Diagnostic Codes pertaining to peripheral nerves in the hand, the Board finds that from November 15, 2020, the date the record revealed additional diagnosis and more severe impairment, the Veteran’s hand disability warrants a rating of 20 percent, but no higher, under Diagnostic Code 8514. Under Diagnostic Codes 8515 and 8516, a 10 percent rating is appropriate for mild incomplete paralysis of the median and ulnar nerves. However, for the radial nerve under Diagnostic Code 8514, mild incomplete paralysis warrants a rating of 20 percent. See 38 C.F.R. § 4.124a, DCs 8514-8716. In the Veteran’s case, there is evidence of mild incomplete paralysis of the radial, ulnar, and median nerves. However, there is no evidence that his cold residual disability is analogous to more severe impairment of the above nerves, that would warrant a rating higher than 20 percent. Moreover, the higher ratings are for moderately severe incomplete paralysis and severe incomplete paralysis with muscle atrophy. The evidence does not show that the Veteran’s disability picture is consistent with moderately severe or severe incomplete paralysis but instead that the symptoms are mild in nature. The record does not reveal significant impairment in strength or reflexes that would evidence moderately severe or severe impairment of the median, ulnar, or radial nerves. Similarly, there is no evidence of muscle atrophy or complete paralysis. See November 2020 VA examination and VA treatment records. Accordingly, the Board finds that from November 15, 2020, the Veteran’s left-hand disability warrants a separate rating for peripheral neuropathy as 20 percent disabling, but no higher, under the applicable Diagnostic Code 8514 for peripheral neuropathy. 38 C.F.R. § 4.124a. 2. Entitlement to a rating in excess of 20 percent for residuals of cold injury, right hand. The Veteran contends that his residuals of cold injury of the right hand has worsened and warrants a rating in excess of 20 percent. The VA received the Veteran’s claim for an increased rating in December 21, 2015. His appeal stems from such date. July 2017 VA treatment records show that his skin is warm and soft, without discoloration or lesions. December 2019 VA treatment records show skin is warm and dry, with no rashes or legions. Upon remand, the Veteran underwent a VA examination in November 2020. Right hand cold injury residuals showed arthralgia or other pain, cold sensitivity, and numbness. He complained of shooting pain, numbness and cold sensitivity. There was no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. There was no functional impairment such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner stated that there is a worsening of the Veteran’s symptoms but no change to the service-connected diagnosis and no additional diagnoses rendered. The Board finds that the Veteran’s symptoms do not warrant a rating in excess of 20 percent. A careful review of the record does not show at least two additional symptoms of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities, as is required for the higher 30 percent rating. The Board has considered the doctrine of reasonable doubt but determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b). The Board will now consider whether separate ratings are warranted. The November 2020 VA examination shows a diagnosis of left upper extremity peripheral neuropathy secondary to cold injury, to include numbness, paresthesia, and pain. Left upper extremity showed mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. He had mild incomplete paralysis of the radial, median, and ulnar nerves. Sensory tests showed decreased sense of touch. The peripheral sensory neuropathy represents a separate diagnosis than the residuals of cold injury, based on separate symptomatology based on some degree of paralysis, which is not a manifestation outlined under the code for cold injury. Thus, separate ratings would not be cumulative or violate the rule against pyramiding. See Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14. Although Diagnostic Code 7122 contemplates symptoms such as numbness, pain, and cold sensitivity, the rating code does not contemplate paralysis of the nerves affective in the hand, which is addressed by the codes for peripheral neuropathy. See 38 C.F.R. § 4.124a, DCs 8514-8716. Indeed, Note (1) of Diagnostic Code 7122 specifically provides that peripheral neuropathy, described in this case as mild incomplete paralysis of the nerves, should be separately evaluated. Based on the above, the Board finds the Veteran is entitled to separate ratings for the hand under both Diagnostic Code 7122 and Diagnostic Codes pertaining to the peripheral nerves. After considering the Diagnostic Codes pertaining to peripheral nerves in the hand, the Board finds that from November 15, 2020, the date the record revealed additional diagnosis and more severe impairment, the Veteran’s hand disability warrants a rating of 20 percent, but no higher, under Diagnostic Code 8514. Under Diagnostic Codes 8515 and 8516, a 10 percent rating is appropriate for mild incomplete paralysis of the median and ulnar nerves. However, for the radial nerve under Diagnostic Code 8514, mild incomplete paralysis warrants a rating of 20 percent. See 38 C.F.R. § 4.124a, DCs 8514-8716. In the Veteran’s case, there is evidence of mild incomplete paralysis of the radial, ulnar, and median nerves. However, there is no evidence that his cold residual disability is analogous to more severe impairment of the above nerves, that would warrant a rating higher than 20 percent. Moreover, the higher ratings are for moderately severe incomplete paralysis and severe incomplete paralysis with muscle atrophy. The evidence does not show that the Veteran’s disability picture is consistent with moderately severe or severe incomplete paralysis but instead that the symptoms are mild in nature. The record does not reveal significant impairment in strength or reflexes that would evidence moderately severe or severe impairment of the median, ulnar, or radial nerves. Similarly, there is no evidence of muscle atrophy or complete paralysis. See November 2020 VA examination and VA treatment records. Accordingly, the Board finds that from November 15, 2020, the Veteran’s left-hand disability warrants a separate rating for peripheral neuropathy as 20 percent disabling, but no higher, under the applicable Diagnostic Code 8514 for peripheral neuropathy. 38 C.F.R. § 4.124a. 3. Entitlement to a rating in excess of 10 percent for residuals of cold injury, right foot. The Veteran contends that his residuals of cold injury of the right foot has worsened and warrants a rating in excess of 10 percent. The VA received the Veteran’s claim for an increased rating in December 21, 2015. His appeal stems from such date. July 2017 VA treatment records show that his skin is warm and soft, without discoloration or lesions. December 2019 VA treatment records show skin is warm and dry, with no rashes or legions. Upon remand, the Veteran underwent a VA examination in November 2020. Right foot cold injury residuals showed arthralgia or other pain, cold sensitivity, and numbness. He complained of shooting pain, numbness and cold sensitivity. There was no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. There was no functional impairment such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner stated that there is a worsening of the Veteran’s symptoms but no change to the service-connected diagnosis and no additional diagnoses rendered. The Board finds that the Veteran’s symptoms are consistent with a 10 percent rating. A careful review of the record does not show an additional symptom of tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities, as required for the higher 20 percent rating. The Board has considered the doctrine of reasonable doubt but determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b). The Board will now consider whether separate ratings are warranted. The November 2020 VA examination shows a diagnosis of right lower extremity peripheral neuropathy secondary to cold injury, to include numbness, paresthesia, and pain. Right lower extremity showed mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. He had mild incomplete paralysis of the musculocutaneous (superficial peroneal) and internal popliteal (tibial) nerves. Sensory tests showed decreased sense of touch. The peripheral sensory neuropathy represents a separate diagnosis than the residuals of cold injury, based on separate symptomatology based on some degree of paralysis, which is not a manifestation outlined under the code for cold injury. Thus, separate ratings would not be cumulative or violate the rule against pyramiding. See Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14. Although Diagnostic Code 7122 contemplates symptoms such as numbness, pain, and cold sensitivity, the rating code does not contemplate paralysis of the nerves affective in the hand, which is addressed by the codes for peripheral neuropathy. See 38 C.F.R. § 4.124a, DCs 8521-8526. Indeed, Note (1) of Diagnostic Code 7122 specifically provides that peripheral neuropathy, described in this case as mild incomplete paralysis of the nerves, should be separately evaluated. Based on the above, the Board finds the Veteran is entitled to separate ratings for the foot under both Diagnostic Code 7122 and Diagnostic Codes pertaining to the peripheral nerves. After considering the Diagnostic Codes of impairment of the peripheral nerves in the foot, the Board finds that from November 15, 2020, the date the record revealed additional diagnosis and more severe impairment, the Veteran’s foot disability warrants a rating of 10 percent, but no higher, under Diagnostic Code 8522. Under Diagnostic Code 8522 for the musculocutaneous nerve, mild incomplete paralysis in noncompensable. Under Diagnostic Code 8524 for internal popliteal nerve, a 10 percent rating is appropriate for mild incomplete paralysis. See 38 C.F.R. § 4.124a, DCs 8521-8526. In the Veteran’s case, there is evidence of mild incomplete paralysis of the musculocutaneous and internal popliteal nerves. However, there is no evidence that his cold residual disability is analogous to more severe impairment of the above nerves, that would warrant a rating higher than 10 percent. Moreover, the higher ratings are for moderately severe incomplete paralysis and severe incomplete paralysis with muscle atrophy. The evidence does not show that the Veteran’s disability picture is consistent with moderately severe or severe incomplete paralysis but instead that the symptoms are mild in nature. The record does not reveal significant impairment in strength or reflexes that would evidence moderately severe or severe impairment of the above nerves. Similarly, there is no evidence of muscle atrophy or complete paralysis. See November 2020 VA examination and VA treatment records. Accordingly, the Board finds that from November 15, 2020, the Veteran’s right foot disability warrants a separate rating for peripheral neuropathy as 10 percent disabling, but no higher, under the applicable Diagnostic Code 8524 for peripheral neuropathy. 38 C.F.R. § 4.124a. 4. Entitlement to a rating in excess of 10 percent for residuals of cold injury, left foot. The Veteran contends that his residuals of cold injury of the left foot has worsened and warrants a rating in excess of 10 percent. The VA received the Veteran’s claim for an increased rating in December 21, 2015. His appeal stems from such date. July 2017 VA treatment records show that his skin is warm and soft, without discoloration or lesions. December 2019 VA treatment records show skin is warm and dry, with no rashes or legions. Upon remand, the Veteran underwent a VA examination in November 2020. Left foot cold injury residuals showed arthralgia or other pain, cold sensitivity, and numbness. He complained of shooting pain, numbness and cold sensitivity. There was no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. There was no functional impairment such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner stated that there is a worsening of the Veteran’s symptoms but no change to the service-connected diagnosis and no additional diagnoses rendered. The Board finds that the Veteran’s symptoms are consistent with a 10 percent rating. A careful review of the record does not show an additional symptom of tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, sub-articular punched out lesions, or osteoarthritis), as required for the higher 20 percent rating. The Board has considered the doctrine of reasonable doubt but determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b). The Board will now consider whether separate ratings are warranted. The November 2020 VA examination shows a diagnosis of left lower extremity peripheral neuropathy secondary to cold injury, to include numbness, paresthesia, and pain. Left lower extremity showed mild intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. He had mild incomplete paralysis of the musculocutaneous (superficial peroneal) and internal popliteal (tibial) nerves. Sensory tests showed decreased sense of touch. The peripheral sensory neuropathy represents a separate diagnosis than the residuals of cold injury, based on separate symptomatology based on some degree of paralysis, which is not a manifestation outlined under the code for cold injury. Thus, separate ratings would not be cumulative or violate the rule against pyramiding. See Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14. Although Diagnostic Code 7122 contemplates symptoms such as numbness, pain, and cold sensitivity, the rating code does not contemplate paralysis of the nerves affective in the hand, which is addressed by the codes for peripheral neuropathy. See 38 C.F.R. § 4.124a, DCs 8521-8526. Indeed, Note (1) of Diagnostic Code 7122 specifically provides that peripheral neuropathy, described in this case as mild incomplete paralysis of the nerves, should be separately evaluated. Based on the above, the Board finds the Veteran is entitled to separate ratings for the foot under both Diagnostic Code 7122 and Diagnostic Codes pertaining to the peripheral nerves. After considering the Diagnostic Codes of impairment of the peripheral nerves in the foot, the Board finds that from November 15, 2020, the date the record revealed additional diagnosis and more severe impairment, the Veteran’s foot disability warrants a rating of 10 percent, but no higher, under Diagnostic Code 8522. Under Diagnostic Code 8522 for the musculocutaneous nerve, mild incomplete paralysis in noncompensable. Under Diagnostic Code 8524 for internal popliteal nerve, a 10 percent rating is appropriate for mild incomplete paralysis. See 38 C.F.R. § 4.124a, DCs 8521-8526. In the Veteran’s case, there is evidence of mild incomplete paralysis of the musculocutaneous and internal popliteal nerves. However, there is no evidence that his cold residual disability is analogous to more severe impairment of the above nerves, that would warrant a rating higher than 10 percent. Moreover, the higher ratings are for moderately severe incomplete paralysis and severe incomplete paralysis with muscle atrophy. The evidence does not show that the Veteran’s disability picture is consistent with moderately severe or severe incomplete paralysis but instead that the symptoms are mild in nature. The record does not reveal significant impairment in strength or reflexes that would evidence moderately severe or severe impairment of the above nerves. Similarly, there is no evidence of muscle atrophy or complete paralysis. See November 2020 VA examination and VA treatment records.   Accordingly, the Board finds that from November 15, 2020, the Veteran’s left foot disability warrants a separate rating for peripheral neuropathy as 10 percent disabling, but no higher, under the applicable Diagnostic Code 8524 for peripheral neuropathy. 38 C.F.R. § 4.124a. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, Associate 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.