BVA9505369 DOCKET NO. 93-08 417 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE 1. Entitlement to an increased rating for residuals of frostbite of both feet, currently evaluated as 10 percent disabling. 2. Entitlement to restoration of a 20 percent rating for right hand peripheral neuropathy due to frostbite. 3. Entitlement to restoration of a 20 percent rating for left hand peripheral neuropathy due to frostbite. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John R. Pagano, Counsel INTRODUCTION The veteran had active military service from November 1979 to November 1983. This matter arises from various rating decisions rendered since March 1991 by the Department of Veterans Affairs (VA) Newark, New Jersey, Regional Office (RO). In the aggregate, these: (1) granted service connection and a 10 percent disability rating for frostbite of both feet; and (2) reduced the 20 percent ratings previously in effect for peripheral neuropathy of each of the veteran's hands to a combined 10 percent rating. In September 1990, the veteran indicated that he wished to reopen his claim regarding entitlement to vocational rehabilitation pursuant to the provisions of 38 U.S.C.A. Chapter 31 (West 1991). That issue is not "inextricably intertwined" with the issues certified for appeal, see Harris v. Derwinski, 1 Vet.App. 180, 183 (1991), nor has it been developed or certified for appeal. See 38 U.S.C.A. § 7105 (West 1991). As such, it is referred to the RO for necessary action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that VA erred in denying him the benefits sought on appeal. He asserts that peripheral neuropathy associated with both of his hands has not improved. He further asserts that symptomatology currently associated with his distal lower extremities warrants an evaluation in excess of that currently assigned. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based upon its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that residuals of frostbite of each of the veteran's distal lower extremities warrants a separate 10 percent disability rating, and that the prior 20 percent disability ratings for peripheral neuropathy of the veteran's hands should be restored. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Symptomatology currently associated with residuals of frostbite of the distal lower extremities includes subjective complaints of pain and swelling, and sensory peripheral neuropathy of the peroneal and tibial nerves, along with stocking hypoesthesia; this is indicative of no more than moderate neuritis. 3. Sustained improvement in the peripheral neuropathy of the veteran's hands had not been clinically demonstrated when the RO rendered its March 1991 rating decision. CONCLUSIONS OF LAW 1. Residuals of frostbite of the left foot are 10 percent disabling, but no more, under applicable schedular criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.20, 4.124(a), Diagnostic Code (DC) 8623 (1994). 2. Residuals of frostbite of the right foot are 10 percent disabling, but no more, under applicable schedular criteria. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.20, and 4.124a, DC 8623 (1994). 3. The criteria for the restoration of a 20 percent disability rating for peripheral neuropathy of each of the veteran's hands as a residual of frostbite are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.344, 4.7, 4.20, and 4.124a, DC 8612 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Considerations As a preliminary matter, the Board finds the veteran's claims to be well grounded; that is, they are plausible and capable of substantiation. Moreover, VA has satisfied its obligation to assist him in their development. See 38 U.S.C.A. § 5107(a) (West 1991). The issues on appeal, therefore, are ready for appellate disposition. II. Evaluation of Residuals of Frostbite of Both Feet The veteran sustained frostbite of his distal lower extremities while on guard duty during military service in February 1982. Initially, chilblains of the toes were diagnosed. The toes of both feet were observed to be cold, red, and painful. A spontaneous thawing process was administered at a local aid station. Symptomatology then apparently subsided; during a re- enlistment examination conducted in March 1983, the veteran had no further complaints regarding his distal lower extremities, nor were any observed. The veteran's distal lower extremities apparently remained asymptomatic until recently. Various VA physical examinations conducted in 1984 and 1988 were silent regarding complaints by the veteran or clinical findings pertaining to the veteran's feet. However, during a VA neurological examination conducted in November 1990, the veteran complained of periodic swelling of his feet. The examiner observed that sensory testing was inconsistent, but that otherwise, the distal lower extremities appeared to be within normal limits. Then, as part of a similar examination conducted in October 1991, neurological conduction studies revealed the presence of bilateral borderline conductions of the peroneal and tibial nerves. Although electrical abnormalities were not present, the examining physician noted that the veteran's feet were cold and clammy. He indicated that such disproportionately severe clinical symptoms might be due to involvement of temperature fibers and autonomic thermoregulatory fibers. The clinical findings on the VA neurological examination conducted in March 1992 tend to confirm that neurological symptomatology has persisted. The veteran complained of recurrent swelling and numbness associated with the feet. The examiner observed that the dorsal feet were cool to the touch, and that stocking hypoesthesia of the distal lower extremities was present. Residuals of frostbite with peripheral neuropathy of the feet was diagnosed. Disability evaluations are based upon a comparison of clinical findings with the applicable schedular criteria. 38 U.S.C.A. § 1155. When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. 38 C.F.R. § 4.20. Peripheral neuritis, characterized by sensory disturbances and pain, is to be rated on the scale provided for injury of the nerve involved; the maximum rating which may be assigned for neuritis not characterized by organic changes will be that for moderate incomplete paralysis. 38 C.F.R. § 4.123 (1994). (Emphasis added). Recent VA neurological examinations indicate that the veteran is suffering from neuritis of the tibial and peroneal nerves of the distal lower extremities without organic changes. Pursuant to the provisions of 38 C.F.R. § 4.123, the sensory disturbances most recently observed during VA neurological examinations, i.e., peripheral neuropathy with stocking hypoesthesia, represent moderate impairment. The provisions of 38 C.F.R. § 4.124a, DC 8623 provide that moderate incomplete paralysis of these nerves be evaluated as 10 percent disabling. (Emphasis added). In view of the foregoing, the Board finds that a 10 percent rating is warranted for each of the veteran's distal lower extremities. This is in contrast to the combined 10 percent rating assigned by the RO pursuant to the provisions of 38 C.F.R. § 4.104, DC 7122(1994). As an incidental matter, the latter disability rating must be discontinued pursuant to the provisions of 38 C.F.R. § 4.14 (1994), in order to avoid the evaluation of the same clinical manifestations under different diagnoses. Ancillary to the foregoing is the question of whether the residuals of frostbite of either of the veteran's lower extremities is exceptional enough in nature to qualify for an extra-schedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1994). The governing norm is whether a given service-connected disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular standards. Id. The record does not indicate that peripheral neuropathy of either of the veteran's lower extremities has required frequent hospitalization or, for that matter, regular treatment. Nor has any evidence been introduced to indicate that these disabilities have compromised the veteran's employment, to include time lost from work. As such, the rating schedule is adequate to evaluate the veteran's service-connected disabilities, and the provisions of 38 C.F.R. § 3.321(b)(1) are not for application. II. Entitlement to Restoration of a 20 Percent Rating for Residuals of Frostbite of Each Hand With Peripheral Neuropathy The Board notes that this case was certified for appeal on the questions of increased ratings for peripheral neuropathy of the distal upper extremities; however, throughout the appellate process, the veteran indicated that he challenged the propriety of the reduction in the previously assigned 20 percent disability rating for each of his hands. Accordingly, the Board will confine its review to the parameters stated on the cover page of this decision. See Peyton v. Derwinski, 1 Vet.App. 282, 286 (1991). By rating decision dated in April 1984, the RO granted the veteran service connection for peripheral neuropathy of each hand as a residual of frostbite. At that time, each extremity was assigned a 20 percent disability rating. That rating decision was based primarily upon the report of a VA medical examination conducted in February 1984, wherein only diminished sensation was observed on the posterior surfaces of the veteran's hands. A review examination was conducted in January 1986 by a fee-basis physician. He observed that there was little objective evidence of residuals of frostbite of the hands, save for coolness to touch, subjective complaints of decreased sensation and complaints by the veteran of cold sensitivity. Based upon those findings, the RO confirmed the 20 percent disability ratings previously assigned for the veteran's hands. Further VA review examination was conducted in March 1988. Again, the veteran complained of recurrent pins and needles in both hands, and added that there was occasional weakness in his hand grips. However, no pathological reflexes were observed. The examining physician recorded no additional abnormalities associated with the hands; he did, however, note that sensory findings were inconsistent. The RO reviewed those findings, and again confirmed the 20 percent disability ratings previously assigned. The veteran then underwent a VA review examination in November 1990. As in the past, the examiner noted that the sensory findings were inconsistent, but that there appeared to be no pathology associated with the reflexes of the hands. The veteran, as he had done in the past, complained of a loss of feeling in his hands, as well as periodic swelling. In March 1991, the RO reviewed those findings, and reduced the 20 percent disability ratings then in effect to no percent pursuant to the provisions of 38 C.F.R. §§ 3.105(e), 4.124(a), DC 8612 (1994). Rating agencies will handle cases so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation. 38 C.F.R. § 3.344(a) (1994). In effect, ratings are not to be reduced except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, and the evidence makes it reasonably certain that the improvement will be maintained under the "ordinary conditions of life." Id. This is required in those cases where ratings have continued for long periods at the same level (five years or more). See 38 C.F.R. § 3.344(c) (1994). The Board finds no such evidence in this case. The March 1991 reductions by the RO appear to have been based upon a single VA examination. That examination was limited to the physical observations of the examining physician who, as the physicians before him, observed that although no pathological reflexes were evident, still, sensory examination of the hands was inconsistent. Given the similarity in the findings noted on various VA neurological examinations conducted from 1984 to 1990, during which time the 20 percent disability evaluations were continued, the Board finds that the evidence at the RO's disposal in March 1991 was insufficient to demonstrate that the disabilities at issue had undergone sustained improvement. As such, the reductions effectuated by the March 1991 rating determination are void ab initio as not in accordance with law; a retroactive reinstatement of the 20 percent ratings for peripheral neuropathy of the distal upper extremities is thus required effective September 1, 1990, the effective date of the reductions at issue. See generally, Brown v. Brown, 5 Vet.App. 413 (1993). It should be reiterated that the foregoing is limited to the question of the propriety of the rating reductions appealed. This is not to imply that the severity of the disabilities at issue, as well as their respective disability ratings, may not be reviewed by the RO in the future. However, if such a review is undertaken, the provisions of 38 C.F.R. § 3.344 must be considered in full. ORDER A 10 percent disability rating for residuals of frostbite of the left foot with peripheral neuropathy is granted, subject to the laws and regulations governing the payment of monetary benefits. A 10 percent disability rating for residuals of frostbite of the right foot with peripheral neuropathy is granted subject to the laws and regulations governing the payment of monetary benefits. A 20 percent disability rating for residuals of frostbite of the right hand with peripheral neuropathy is restored. A 20 percent rating for residuals of frostbite of the left hand with peripheral neuropathy is restored. JACQUELINE E. MONROE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.