Citation Nr: A24029745 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 200131-67523 DATE: June 6, 2024 ORDER A 30 percent rating, but no higher, for residuals of cold injury of the right foot (originally claimed as trench foot of the right foot) from August 27, 2015 is granted, subject to the laws and regulations governing the award of monetary benefits. A 30 percent rating, but no higher, for the residuals of cold injury of the left foot (originally claimed as trench foot of the right foot) from August 27, 2015 is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT From the date of service connection, August 27, 2015, the Veteran's residuals of a cold injuries of the left and right feet have been manifested by signs and symptoms including arthralgia or other pain, cold sensitivity, numbness, locally impaired sensation, and nail abnormalities. CONCLUSIONS OF LAW 1. Beginning August 27, 2015, the criteria for a 30 percent rating for residuals of cold injury of the right foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7122. 2. Beginning August 27, 2015, the criteria for a 30 percent rating for residuals of cold injury of the left foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, DC 7122. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service in the United States Army from September 1983 to April 1992. In connection with this appeal, the Veteran testified before Veterans Law Judge Blackwelder in January 2024, and a transcript is of record. This appeal arises from a November 2019 Appeals Modernization Act rating decision. The Veteran appealed to the Board by filing a VA Form 10182, wherein he selected the hearing docket. Therefore, the Board may only consider the evidence of record at the time of the November 23, 2019 rating decision, as well as any evidence submitted by the Veteran or his representative at the hearing, or within 90 days of the hearing. 38 C.F.R. § 20.303. By operation of law, the Board cannot consider: (1) evidence submitted during a period after the AOJ issued the decision on appeal and before the Board hearing, or (2) evidence submitted more than 90 days after the Board hearing. 38 C.F.R. § 20.303. If evidence was received during a period of time when such was not allowed, it was not considered by the Board in this decision. Should the Veteran seek review of that evidence, if any, he may file a Supplemental Claim. Instructions for how to file a Supplemental Claim are included with this decision. i) From August 27, 2015, a 30 percent rating for residuals of cold injury of the right foot (originally claimed as trench foot of the right foot) is granted. ii) From August 27, 2015, a 30 percent rating for residuals of cold injury of the left foot (originally claimed as trench foot of the left foot) is granted. The RO granted service connection for residuals of cold injury of the right and left feet in a March 2019 rating action. The RO assigned an initial noncompensable rating to each foot from June 15, 2016 to March 5, 2019, and 30 percent ratings therefrom. In the appealed November 2019 rating action, the RO found that it had committed clear and unmistakable error in its assignment of an effective date of June 15, 2016 for the award of service connection for residuals of cold injury to the left and right feet, and assigned an effective date of August 27, 2015, the date it received the Veteran's intent to file a claim for compensation for this disability. The RO continued the noncompensable ratings assigned to each foot for the period from August 27, 2015 to March 5, 2019, and 30 percent ratings therefrom. The Veteran contends that the 30 percent rating assigned to each foot should be made retroactive to the original date of service connection, August 27, 2015, because his symptoms have remained the same since that time. Hearing Transcript (T.) at pages 2-3)). As an initial matter, the Board notes that the AOJ has characterized the issues on appeal as whether the Veteran is entitled to an earlier effective date prior to March 5, 2019 for the grants of service connection for his residuals of cold injuries of the left and right feet and 30 percent ratings. However, it appears that the RO has misconstrued the Veteran's intent in filing this appeal. During his hearing, the Veteran testified that the 30 percent ratings assigned to each foot should be awarded from the date of service connection (i.e., August 27, 2015), and the RO should not have staged the ratings assigned to his residuals of cold injuries to the right and left feet, as opposed to arguing that he is entitled to earlier effective dates for the awards of service connection or 30 percent ratings. As such, the Board has recharacterized the issues on appeal to reflect this intent. The Veteran's residuals of cold injuries to the right and left feet are rated under DC 7122. 38 C.F.R. § 4.104, DC 7122, the DC used to evaluate cold injury, residuals. Under DC 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. As noted previously, herein, the Veteran contends that the effective date of August 27, 2015, is warranted because his foot symptoms have remained the same since he filed a claim on August 27, 2015. Transcript (T.) at page (pg.) 2)). He credibly testified that the bilateral foot symptoms which supported the 30 percent rating had been present since before he filed his claim. Id at pg. 3. The Board finds that the persuasive evidence weighs in favor of an award of 30 percent ratings for the cold injury residuals of the right and left feet from August 27, 2015. In a March 2019 rating action, the RO granted a rating of 30 percent to the service-connected residuals of cold injuries of the right and left feet based on a March 5, 2019 VA examination report that revealed an increase in severity of the Veteran's disability. 38 C.F.R. § 4.104, Diagnostic Code 7122. To that end, the March 5, 2019 Cold Injury Disability Benefits Questionnaire (DBQ) reflects that the Veteran's current (then) symptoms included blisters on the feet; arthralgia; cold sensitivity; nail abnormalities; and, and locally impaired sensation. The Board notes that similar symptoms were also noted on a July 2016 VA examination of the feet conducted and May 2014 report, authored by A. M., DO and received into the record on February 3, 2016. See July 2016 VA Cold Injuries DBQ and May 2014 report, authored by A. M., DO and received into the record on February 3, 2016. Thus, the Board finds that for entire appeal period, the cold injury residuals of the right foot and left foot are manifested in signs and symptoms such as arthralgia or other pain, cold sensitivity, as well as nail abnormalities and locally impaired sensation. Therefore, the Board finds that the weight of the evidence supports 30 percent ratings for residuals of cold injuries of the right foot and left foot are warranted under Diagnostic Code 7122 from August 27, 2015. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.