Citation Nr: 0003620 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-01 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an increase in the 10 percent rating assigned for bilateral residuals of frozen feet prior to January 12, 1998. 2. Entitlement to an increase in the 10 percent rating assigned for residuals of cold injury of the right foot from January 12, 1998. 3 Entitlement to an increase in the 10 percent rating assigned for residuals of cold injury to the left foot, from January 12, 1998. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD Bernie Gallagher, Counsel INTRODUCTION The veteran had active service from June 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (the Board) on appeal as a result of rating decisions by the Department of Veterans Affairs (VA) regional office (RO) in North Little Rock, Arkansas. In October 1997, a rating action denied an increase in the 10 percent rating assigned for the residuals of bilateral frozen feet was denied. A rating decision in February 1999, granted the veteran a separate 10 percent rating for each foot under Diagnostic code 7122, effective as of January 12, 1998. This increased the combined rating to 20 percent . The veteran testified at a hearing at the RO in January 1999. A transcript of that hearing is in the claims folder. In the informal hearing presentation, the representative referred to VA clinical evidence received in August 1999 and waived initial review of this evidence by the RO under 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. The evidence prior to the January 12, 1998 discloses that the veteran's disability from frostbite of both feet was manifested by no more than mild symptoms, including complaints of numbness, tingling, and pain with prolonged walking or standing. 2. From January 12, 1998, the residuals of cold injury of the left foot are manifested by complaints of pain, numbness and cold sensitivity plus nail abnormality of the great toe, without objective evidence of actual tissue loss, color changes, locally impaired sensation due to cold injury, hyperhidrosis or X-ray abnormalities such as osteoporosis or arthritis. 3. From January 12, 1998, the residuals of cold injury of the right foot are manifested by complaints of pain, numbness and cold sensitivity plus nail abnormality of the great toe, without objective evidence of actual tissue loss, color changes, locally impaired sensation due to cold injury, hyperhidrosis or X-ray abnormalities such as osteoporosis or arthritis. CONCLUSIONS OF LAW 1. Prior to January 12, 1998, the veteran did not meet the criteria for an increased in the 10 percent rating assigned for bilateral residuals of frozen feet. U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.104, Diagnostic Code 7122 (1998). 2. From January 12, 1998, the criteria for a rating of 20 percent have been met for residuals of frostbite of the left foot. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.104, Diagnostic Code 7122 (1999). 3. From January 12, 1998, the criteria for a rating of 20 percent have been met for residuals of frostbite of the right foot. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 4.104, Diagnostic Code 7122 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran was awarded service connection for frostbite of both feet in a rating action in May 1946, evaluated as noncompensable from February 2, 1946. The veteran underwent a VA orthopedic examination in March 1948 which showed marked dusky cyanosis up as far as the ankles, with burning and aching after walking one hour. In addition, whitened areas on the bottom of the feet were softer and showed beginning maceration with no ulceration. The pertinent diagnosis was bilateral residuals of frozen feet. A rating action in May 1948 increased the evaluation to 10 percent from March 24, 1948, for the residuals of the bilateral frozen feet. Several subsequent VA examinations disclosed no evidence of a worsening of the service-connected bilateral residuals of frozen feet. The veteran filed a claim for an increased rating for the residuals of frostbite of the feet in June 1997. On a VA examination in July 1997, the veteran reported that he did not have surgery on his feet when hospitalized during service, nor did he have gangrene. He denied ulcerations and skin grafting. He complained of paraesthesias, numbness of the feet, and occasional pain in his feet, especially with standing and walking. He maintained that he had been advised after a number of tests by the VA that he did not have circulation problems in his feet. On inspection, the feet were pink and warm to the touch. There was only a minimal loss of hair over the dorsum of the feet and toes. The dorsalis pedis and posterior tibial pulses were excellent bilaterally. There was no evidence of ulceration or circulatory compromise. There was no evidence of callous formations. The clinical impression was frostbite of both feet. The veteran completed a protocol examination history for cold injuries in February 1999. He reported that the cold injury of his feet resulted in pain most of the time. He reported treatment by the VA from 1948 to about 1956 or 1957. He claimed that he had recently asked for treatment but was told nothing could be done. He claimed that his current problems from the cold injury were pain, loss of normal use of both legs, falling down, and lack of balance. In January 1998, the veteran submitted a copy of a newspaper article dealing with frostbite sustained by veterans, along with a VA news release describing a VA rule change concerning veterans with long-term cold injuries. The veteran and his spouse testified at a hearing at the RO in January 1999. He complained of pain and a lack of mobility of the legs, particularly the left leg. He reported numbness and tingling. The big toe hurt the worst. In cold weather he had to keep his feet warm or they would become painful. If the feet were exposed, they would change color and become white. He claimed tissue loss every year. He claimed the condition interfered with his ability to drive an automobile. His spouse testified concerning problems he had with his legs as a result of numbness and tingling. The veteran claimed that he used a cane as a result of the frostbite condition. The veteran was examined by the VA in February 1999. The examiner reviewed the claims file and noted that in 1945, the veteran received cold injury to the hands and feet and was hospitalized for treatment. He stated that initially he had pain and a bluish-blackish discoloration of the hands and feet. He noticed some peeling and flaking of the skin from his feet but he never developed ulcers of the feet and hands. He never received surgery or skin grafting. He stated that since the initial injury, he continued to be bothered with episodes of numbness and tingling in the feet and he stated that he had trouble walking and he was beginning to lose his balance because of pain in the great toes bilaterally. He did lose any fingers or toenails. He noticed some thickening of the toe nails involving the great toe bilaterally. He had not been on any treatment for fungal infections of the feet. There was no history of diabetes and he stated that his feet and hands felt cool most of the time and were pink. He claimed that on exposure to cold they became pale and then they became somewhat dusky and blue. He was not on any circulation medicine at this time. On physical examination, the veteran ambulated with a cane on a wide base. The feet were warm and the skin was pink. There was minimum thickening of the toenail of each great toe. The posterior pedis tibial and dorsalis pedis pulses were of good quality. There was no evidence of a skin rash, scar, or ulcer. X-rays of the feet disclosed an old healed fracture through the neck of the second metatarsal on the right. The remainder of the bony structures appeared unremarkable. The clinical impression was cold injury to both hands and feet. In August 1999, a VA report of a nerve conduction study/electromyogram, performed in July 1999 was received, as well as a copy of a VA outpatient report disclosing treatment for an unrelated disability. This report showed findings of a sensorimotor neuropathy of the lower extremities which appeared to be primarily and predominately axonopathic. In the informal hearing presentation, the representative referred to this statement and waived initial review of this evidence by the RO under 38 C.F.R. § 20.1304. Legal Analysis The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased disability rating is well grounded if the claimant alleges that a service-connected condition has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the veteran has complained of increased disability as a result of his service-connected residuals of frozen feet, and therefore he has satisfied the initial burden of presenting a well-grounded claim. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1998). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case the RO provided the veteran VA examinations and an opportunity for a personal hearing. There is no indication of additional medical records that the VA failed to obtain. Therefore, VA has satisfied its duty to assist the veteran mandated by 38 U.S.C.A. § 5107. The veteran's disability from frostbite of the feet has been rated by the RO under Diagnostic Code 7122. Under that diagnostic code, prior to January 12, 1998, residuals of frozen feet with mild symptoms such as chilblains were rated as 10 percent disabling whether the disorder was unilateral or bilateral. A 20 percent evaluation was assigned for unilateral persistent moderate swelling, tenderness, redness, etc. If such symptoms were bilateral, a 30 percent rating is for assignment. Where there was unilateral loss of toes or parts, or severe symptoms, a 30 percent evaluation was assigned. When such severe symptoms or loss of toes or parts was bilateral, a 50 percent evaluation was for assignment. Effective January 12, 1998, the regulations pertinent to the rating of Diseases of the Arteries and Veins were revised. The regulations for rating cold injury residuals (which are included in 38 C.F.R. § 4.104) were subsequently revised again in July 1998. This revision was effective August 13, 1998. The revised criteria provide a 30 percent rating 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 20 percent rating is assigned 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 10 percent rating is assigned for arthralgia or other pain, numbness, or cold sensitivity. One would 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. One would also 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. Also, each affected part (e.g., hand, foot, ear, nose) is evaluated separately and the ratings combined in accordance with 38 C.F.R. §§ 4.25 and 4.26. 63 Fed. Reg. 37778-37779 (1999). Utilizing the revised regulations in a February 1999 rating decision, the RO assigned a separate rating of 10 percent for frostbite to each of the veteran's feet, effective from January 12, 1998, the effective date of the revised regulations. In addition, a bilateral factor of 1.9 percent was added to the combined ratings pursuant to 38 C.F.R. § 4.26 (1999). The combined rating for the veteran's disability from bilateral frostbitten feet remained at 20 percent. In Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), the United States Court of Appeals for Veterans Claims (Court), held that when there has been a change in an applicable statute or regulation after a claim has been filed but before a final decision has been rendered, VA must apply the version of the statute or regulation which is most favorable to the claimant, unless Congress has expressly provided otherwise or has authorized VA to provide otherwise and VA has done so. Furthermore, the Court has spoken on this issue on several occasions subsequent to the Karnas decision. First, in Allin, v. Brown, 6 Vet. App.207, 211, (1994), the Court stressed that the revised mental disorder regulations did not allow for their retroactive application prior to November 7, 1996, their effective date. The Court stated that when the Secretary adopted the revised mental disorder rating schedule and published it in the Federal Register, the publication clearly stated an effective date of November 7, 1996. Because the revised regulations expressly stated an effective date and contained no provision for retroactive applicability, it is evident that the Secretary intended to apply those regulations only as of the effective date. See Allin v. Brown, 6 Vet. App. 207, 211 (1994). In addition, in McCay v, Brown, 9 Vet. App. 183, 187 (1997), the Court stated that 38 U.S.C.A. § 5110(g) is a permissive statue which does not require VA to make a retroactive award for a period of one year prior to the date of the appellant's claim, regardless of whether the appellant met the criteria for an award of benefits when the new law was enacted or became effective. The plain language of section 5110(g) prohibited a retroactive award prior to the effective date of the legislation. In DeSousa v. Gober, 10 Vet. App. 461 (1997), the Court considered a case where there had been a liberalized change in a regulation concerning an education program during the pendency of an appeal. The Court upheld a Board 1995 decision which held the effective date rules, including 38 U.S.C.A. § 5110(g)precluded application of the liberalizing program of education pursued prior to the regulation's effective date. The Court stated that Section 5110(g), precludes an effective date earlier than the effective date of the liberalizing law or regulation "pursuant to" which such benefits would have to be provided. Because that effective date, September 4, 1992, at the earliest, is after the pursuit of the May through July 25, 1989 CJCB course of study at issue, application of the liberalizing law and regulation could not benefit the veteran in this case. All of the above Court decisions stand for the proposition that Section 5110(g), precludes an effective date earlier than the effective date of the liberalizing law or regulation, despite the Court's holding in Karnas. Following this line of cases in this case, application of the new liberalizing criteria concerning cold injuries will not be considered prior to the effective date of January 12, 1998. The Board will now address the issue of entitlement to an increase in the 10 percent rating assigned prior to January 1998, under the old criteria. As indicated above, under the old criteria, residuals of frozen feet with mild symptoms such as chilblains were rated as 10 percent disabling whether the disorder was unilateral or bilateral. A 20 percent evaluation was assigned for unilateral persistent moderate swelling, tenderness, redness, and a 30 percent rating for bilateral persistent moderate swelling, tenderness, redness, etc. The clinical findings on the VA examination in July 1997 disclosed that the feet were pink and warm and there was no evidence of ulceration or circulatory compromise. There was only a minimal loss of hair over the dorsum of the feet and toes. On that examination, the veteran complained of paresthesias and numbness of the feet and pain in the feet with standing and walking. The evidence prior to January 12, 1998 does not demonstrated objective evidence of symptoms such as swelling, tenderness, or redness. Therefore, entitlement to an increase in the 10 percent rating prior to January 12, 1998 is not warranted. The regulations for rating cold injury residuals (which are included in 38 C.F.R. § 4.104) were subsequently revised in July 1998. See 63 Fed. Reg. 37,778- 779 (July 14, 1998) (to be codified at 38 C.F.R. § 4.104, Diagnostic Code 7122 (1999)). This revision was effective August 13, 1998. In evaluating the veteran's service-connected cold injuries from January 1998, the Board notes that the veteran and his spouse testified in January 1999 that he complaints of numbness and tingling and in cold weather his feet would become painful if not kept warm. He also stated that if exposed, the feet would change color and become white, and that he had tissue loss every year. On the February 1999 examination, the feet were warm and the skin was pink. The posterior tibial and dorsalis pulses were of good quality and there was no evidence of a skin rash, scar, or ulcer. X-rays of the feet were normal except for the old residuals of a fracture of the second metatarsal on the right. However, there was evidence of nail abnormality in the form of minimum thickening of the toenail of each great toe. Subsequent studies confirmed the existence of a peripheral neuropathy, but there is no medical evidence that this neuropathy is the result of the service connected cold injury. Therefore, it cannot be said that the cold injury causes locally impaired sensation. As indicated above, under the new criteria, a 20 percent rating is assigned for each foot with cold injury residuals manifested by pain, numbness, cold sensitivity, or arthralgia plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis) of affected parts. A review of the clinical evidence discloses symptoms of pain, numbness, cold sensitivity plus findings of nail abnormality bilaterally. However, there is no objective evidence of actual tissue loss, color changes, locally impaired sensation due to the cold injury, hyperhidrosis or X-ray abnormalities such as osteoporosis or arthritis. Accordingly, with application of the benefit of the doubt rule, the appellant more nearly meets the criteria for a 20 percent rating for each foot. A combined rating of 40 percent is in order. ORDER Entitlement to an increased rating for residuals of bilateral frozen feet prior to January 12, 1998 is denied. Entitlement to a 20 percent rating for residuals of cold injury of the right foot from January 12, 1998, is granted, as is entitlement to a 20 percent rating for residuals of cold injury from January 12, 1998, for the left foot. To this extent, the appeal is allowed, subject to the criteria that govern the payment of monetary awards. NANCY I. PHILLIPS Member, Board of Veterans' Appeals