Citation Nr: 0003437	
Decision Date: 02/10/00    Archive Date: 02/15/00

DOCKET NO.  96-29 664 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUES

1.  Entitlement to an evaluation in excess of 10 percent for 
residuals of frozen feet, right.

2.  Entitlement to an evaluation in excess of 10 percent for 
residuals of frozen feet, left.  

3.  Entitlement to an evaluation in excess of 10 percent for 
lumbosacral strain.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Robinson, Associate Counsel


INTRODUCTION

The veteran had active service from November 1947 to November 
1951.  

This matter comes before the Board of Veterans' Appeals 
(Board) from a June 1995 rating determination of a Department 
of Veterans Affairs (VA) Regional Office (RO).  

In his brief on appeal submitted to the Board the veteran's 
representative listed the issues for consideration as 
including entitlement to service connection for bilateral 
hearing loss, bilateral frostbite of the upper extremities, 
and entitlement to an earlier effective date for service 
connection for bilateral peripheral neuropathy of the lower 
extremities.  He also listed for consideration the issue of 
entitlement to a compensable evaluation for rupture, 
traumatic, right ear drum with otitis externa.

Service connection for bilateral frostbite was granted by a 
July 1999 rating decision.  That issue is therefore no longer 
before the Board. 

The issue of entitlement to service connection for bilateral 
hearing loss has not been adjudicated by the RO, and is 
referred to that organization for appropriate action.

In a November 1995 rating decision, the RO denied entitlement 
to nonservice-connected pension.  The veteran has not 
submitted a notice of disagreement with that decision.  In a 
July 1999 rating decision, the RO denied entitlement to 
service connection for tinnitus and a left ear disability.  
The veteran did not submit a notice of disagreement as to 
those issues.  Accordingly, the Board does not have 
jurisdiction to consider these issues.  Shockley v. West, 11 
Vet. App. 208 (1998) (the Board does not have jurisdiction 
over an issue unless there is a jurisdiction conferring 
notice of disagreement); see also Ledford v. West, 136 F.3d 
776 (Fed. Cir 1998); Collaro v. West, 136 F.3d 1304 (Fed. 
Cir. 1998).


In a statement dated in September 1997, the veteran 
reasonably raised the issue of entitlement to service 
connection for frostbite of the ears.  This issue is referred 
to the RO for appropriate action.  See Shockley v. West, 11 
Vet. App. 208, 214 (1998) (a claim that is reasonably raised 
but not yet adjudicated by the RO remains pending before the 
RO).


REMAND

The veteran was accorded a VA examination in March 1997.  On 
examination of the feet, there was slightly decreased 
sensation in the first metatarsophalangeal joint in the right 
side with dorsiflexion to about 30 degrees and plantar 
flexion to about 45 degrees.  On the left foot, he had about 
40 degrees of dorsiflexion and plantar flexion to about 45 
degrees in the first metatarsophalangeal joint.  The 
remaining toes had good range of motion. There were no ulcers 
or skin breakdown noted.  Sensory examination was diffusely 
deficient.  There was decreased pinprick and two-point 
discrimination throughout the foot in diffuse stocking like 
manner.  X-rays of both feet showed minimal diffuse 
osteoporosis.  Degenerative joint disease first 
metatarsophalangeal joints, right foot, otherwise normal 
foot.  The diagnosis was bilateral feet were involved with 
peripheral neuropathy secondary to frostbite that was 
moderately symptomatic.  

The Board notes that by regulatory amendment effective 
January 12, 1998, substantive changes were made to the 
respective schedular criteria for evaluating the 
cardiovascular system, including thrombophlebitis.  62 Fed. 
Reg. 65207-65224 (1997) (to be codified at 38 C.F.R. § 
4.104).

When a law or regulation changes while a case is pending, the 
version most favorable to the claimant applies, absent 
congressional intent to the contrary. Karnas v. Derwinski, 1 
Vet.App. 308, 312-313 (1991). 

Prior to January 12, 1998, Diagnostic Code 7122 (frozen feet) 
provided that:

Residuals of (immersion foot) with mild 
symptoms, chilblains: bilateral warranted 
a 10 percent evaluation and unilateral 
warranted a 10 percent evaluation.  With 
persistent moderate swelling, tenderness, 
redness, etc: bilateral warranted a 30 
percent evaluation and unilateral 
warranted a 20 percent evaluation.  With 
loss of toes, or parts, and persistent 
severe symptoms: bilateral warrant a 50 
percent evaluation and unilateral 
warranted a 30 percent evaluation.  Note: 
With extensive losses higher ratings may 
be found warranted by reference to 
amputation ratings for toes and 
combination of toes; in the most severe 
cases, ratings for amputation or loss of 
use of one or both feet should be 
considered.  There is no requirement of 
loss of toes or parts for the persistent 
moderate or mild under this diagnostic 
code.

Effective January 12, 1998, the provisions of Diagnostic Code 
7122 were revised to provide that:

Cold injury residuals with pain, 
numbness, cold sensitivity, or arthralgia 
warrant a 10 percent evaluation.  With 
pain, numbness, cold sensitivity, or 
arthralgia plus tissue loss, nail 
abnormalities, color changes, locally 
impaired sensation, hyperhidrosis, X-ray 
abnormalities (osteoporosis, subarticular 
punched out lesions, or osteoarthritis) 
of affected parts warrants a 20 percent 
evaluation. With pain, numbness, cold 
sensitivity, or arthralgia 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) 
of affected parts warrants a 30 percent 
evaluation.  

38 C.F.R. § 4.104, Diagnostic Code 7122 (1998).

The provisions of Diagnostic Code 7122 were further revised 
effective August 13, 1998, to provide that:

With the following in affected parts: 
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)...... 30

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)... 20

Arthralgia or other pain, numbness, or 
cold sensitivity.... 10

Note (1): 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): 
Evaluate each affected part (e.g., hand, 
foot, ear, nose) separately and combine 
the ratings in accordance with Secs. 4.25 
and 4.26.

63 Fed. Reg. 37778-37779 (1998) (codified at 38 C.F.R. § 
3.104, Diagnostic Code 7122(1999)).

The veteran has not been afforded a VA examination since the 
changes in the rating criteria for frozen feet, and it is 
unclear whether the osteoporosis and degenerative joint 
disease reported in the feet are residuals of the frozen 
feet. 

Appellate review is initiated by a notice of disagreement and 
completed by a substantive appeal filed after a statement of 
the case is furnished to the veteran.  The notice of 
disagreement must be filed within one year from the date of 
mailing of the notice of the determination.  The substantive 
appeal must be filed within 60 days from the date the 
statement of the case is mailed, or within the remainder of 
the one year period from the date of mailing of the notice of 
determination, whichever occurs later. In the absence of a 
properly perfected appeal, the Board is without jurisdiction 
to determine the merits of the case.  38 U.S.C.A. § 7105; see 
Roy v. Brown, 5 Vet. App. 554 (1993); 38 C.F.R. §§ 20.200, 
20.302.

The issue of entitlement to a compensable evaluation for 
otitis externa was denied in a July 1997 rating decision.  
The veteran submitted a timely notice of disagreement and a 
statement of the case was issued in August 1995.  A 
supplemental statement of the case was issued in May 1999.  
It does not appear that the veteran has timely perfected an 
appeal of the denial of a compensable evaluation for rupture 
of the right eardrum, otitis externa.  Although the Board is 
obligated to assess its jurisdiction over an issue, it is 
precluded from determining in the first instance whether an 
appeal has been timely perfected.  In addition, prior to the 
Board's disposition of the appeal, the veteran must be 
informed of the procedural deficit and be given the 
opportunity to submit evidence and arguments pertaining to 
the timeliness of his appeal.  Marsh v. West, 11 Vet. App. 
468 (1998).

In a November 1995 rating decision, the RO granted service 
connection for peripheral neuropathy for the right and left 
leg and assigned a 10 percent evaluation for each leg.  In a 
statement received in June 1996, the veteran expressed 
disagreement with said rating decision.  

Under the provisions of 38 U.S.C.A. § 7105 (West 1991); 38 
C.F.R. § 20.200 (1998) a statement of the case must be issued 
in response to a notice of disagreement.  The issuance of a 
supplemental statement of the case prior to the veteran's 
notice of disagreement would not satisfy this requirement.  
The RO has not issued a statement of the case in response to 
the notice of disagreement.  

In an August 1994 statement, R.R., M.D., opined that the 
veteran's ankle wound could by a straight forward chain of 
events be responsible for repeated exacerbations of his low 
back problems.  

The veteran was accorded a VA examination in January 1995.  
On examination of the lumbar spine, there was approximately 
50 percent loss of motion in all directions, lateral bending 
to either side, flexion, and extension.  He came within 6 
inches of touching his toes with his fingertips.  Straight 
leg raising was negative to 90 degrees, bilaterally.  Deep 
tendon reflexes were equal and active at 2+.  X-rays of the 
lumbar spine showed degenerative disk disease, L2-L3 with 40 
percent loss height of the disk space and again at L4-L5 with 
50 percent of the disk space height loss and L5-S1 with 70 
percent of the disk height loss.  There were mild osteophytes 
throughout the vertebral bodies and facets and it was also 
noted that he had about a 10 percent loss of height 
anteriorly at T-12 vertebra.  The examiner noted that the 
veteran's back disability and service-connected gunshot wound 
injury were related.  He further noted that the 
osteoarthritis and degenerative disc disease were just a 
product of aging.  The diagnosis was degenerative disk 
disease, lumber spine-moderate.  

The veteran was accorded a VA examination in December 1995.  
On examination, it was noted that prior computed tomography 
scan of the lumbar spine showed an annular bulge of L3-L4 and 
also an annular bulge of L4-L5, indicating degenerative disk 
disease at both levels.  It was also noted that the veteran 
had sclerosis and loss of height.  Moreover, osteoarthritis 
was noted in the facets of the lumber spine.  Examination of 
the lumbar spine was essentially the same as the January 1995 
examination.  There was no involuntary spasms of the lumbar 
paravertebral muscles. There was tenderness to palpation of 
the illiolumbar ligaments and the spinous processes of the 
lower spine.  The diagnoses were degenerative disk disease, 
lumbar, L3-L4, L4-L5, and L5-S1, moderate and osteoarthritis 
of lumbar spine-mild to moderate.  The examiner opined that 
he did not believe that there was a direct relationship 
between strains and deformities of the legs or osteoarthritis 
of the spine.  He noted that the veteran had any reported 
injury to the spine, as such 
the changes seen were actually those of aging.  Moreover, he 
reported that the veteran's stumbling gait would aggravate 
any discomfort, but would not cause the pathologic changes 
seen in the spine.  

The veteran was accorded a VA examination in March 1997.  On 
examination of the lumbosacral spine, the veteran could 
extend to approximately 10 degrees, with 75 degrees of 
flexion, and side-to-side bending of 20 degrees each.  Deep 
tendon reflexes were symmetrical in the lower extremities.  
Sensory examination was diffusely decreased and vibratory 
sense was likewise diminished.  The diagnosis was diffuse 
arthrosis involving the lumbosacral spine as well as 
degenerative at several levels, moderately symptomatic.  

In an addendum dated in August 1997, it was noted that during 
service the veteran sustained a gunshot wound that was 
superficial involving the skin and soft tissues of his right 
calf.  The examiner responded to the question of whether the 
veteran's leg wound and altered gait pattern resulted in 
undue strain on the lower back.  The examiner again noted 
that the injury was superficial not involving in bone, 
instead muscle and skin.  He reported that the wound was 
debrided and healed uneventfully.  He noted that is was very 
unlikely that the injury to the leg had a direct relationship 
with the arthritic changes noted in the cervical and lumbar 
spine.  He reported that the changes in the spine were 
consistent with the veteran's aging pattern, in the absence 
of an incident of injury to the lumbar or cervical spine.  
The arthritic changes were consistent with normal aging 
abnormalities, than post-traumatic, or as a result of any 
weight shifting or gait abnormalities, secondary to the 
gunshot wound injury.  

Service connection may be granted for a disability which is 
proximately due to or the result of a service connected 
disease or injury.  38 C.F.R. § 3.310(a) (1999).  The Court 
has defined "disability" in this context as impairment of 
earning capacity, including any additional impairment of 
earning capacity resulting from a service-connected disorder, 
regardless of whether the additional impairment is a separate 
disease or injury that was caused by the service-connected 
disorder.  In other words, it is not necessary that an 
etiological relationship exist between the service-connected 
disorder and the nonservice-connected disorder.  If a 
nonservice-connected disorder is aggravated by a service- 
connected disorder, the veteran is entitled to compensation 
for the degree of increased disability (but only that degree) 
over and above the degree of disability existing prior to the 
aggravation.  Allen v. Brown, 7 Vet. App. 439 (1995).

While the Board notes that the December 1995 VA examiner 
indicated that there was no direct relation between the 
veteran's lumbosacral strain and osteoarthritis, he stated 
that he believed that the veteran's stumbling gait would 
aggravate any discomfort the veteran experienced.  The Board 
is of the opinion that the issue of service connection on an 
aggravation basis should be addressed.  

The issue of entitlement to an evaluation in excess of 10 
percent for lumbosacral strain is inextricably intertwined 
with the issue of entitlement to service connection on an 
aggravation basis, and is therefore held in abeyance pending 
resolution of this remand.

To ensure that VA has met its duty to assist the claimant in 
developing the facts pertinent to the claim and to ensure 
full compliance with due process requirements, the case is 
REMANDED to the RO for the following development:

1.  The RO should determine whether the 
veteran has submitted a timely 
substantive appeal as to the issue of 
entitlement to a compensable evaluation 
for rupture, traumatic, right ear drum 
with otitis externa.  If the decision is 
adverse to the veteran he should be 
informed of the steps necessary to 
perfect an appeal as to the timeliness of 
his substantive appeal.

2.  The RO should undertake any 
development deemed appropriate pertaining 
to the issue of entitlement to an earlier 
effective date for the grant of a 10 
percent rating for peripheral neuropathy 
of the right and left leg, and for 
service connection for right ankle 
disability.  If the benefits sought 
remain denied, the veteran and his 
representative should be provided a 
statement of the case and provided the 
opportunity to submit a substantive 
appeal.

3.  The RO should obtain the names and 
addresses of all medical care providers 
who treated the veteran for disability of 
the lumbar spine or frozen feet.  After 
securing the necessary release, the RO 
should obtain those records not already 
part of the claims folder and associate 
them with that folder. 

4.  The RO should schedule the veteran 
for an appropriate examination of his low 
back to determine the current severity of 
the service connected disability as well 
as whether it is at least as likely as 
not that the service connected gunshot 
wound of the right leg with injury to 
Muscle Group XI aggravated the arthritis 
in the lumbar spine.  The examiner should 
review the claims folder including a copy 
of this remand, prior to completing the 
examination report.  All necessary tests 
or studies should be performed and all 
findings must be reported in detail.  If 
loss of range of motion is present, the 
examiner should comment on whether the 
loss of range of motion is mild, 
moderate, or severe as well as the reason 
for the loss of motion.  The examiner is 
further requested to carefully elicit 
from the veteran all pertinent subjective 
complaints with regard to the low back 
and lower extremities and to make 
specific findings as to whether each 
complaint is related to the service- 
connected lumbosacral strain.  

The examiner is also requested to render 
an opinion as to whether there is 
adequate pathology present to support the 
level of each of the veteran's subjective 
complaints.  The examiner is further 
requested to indicate the presence or 
absence of the following: muscle spasm on 
extreme forward bending; unilateral loss 
of lateral spine motion in standing 
position; listing of whole spine to 
opposite side; positive Goldwaithe's 
sign; marked limitation of forwarding 
bending in standing position; loss of 
lateral motion with osteoarthritic 
changes; narrowing or irregularity of 
joint space; or some of the above with 
abnormal mobility on forced motion.  The 
examination report must address the 
following medical issues:

(i) The baseline manifestations which are 
due to the effects of the low back 
disorder.

(ii) The increased manifestations which, 
in the examiner's opinion, are 
proximately due to the service-connected 
disability based on medical 
considerations.

(iii) The medical considerations 
supporting an opinion that increased 
manifestations of any additional low back 
discomfort proximately due to the 
service- connected disability.

5.  The veteran should be afforded an 
appropriate examination to evaluate the 
severity of the service connected frozen 
feet in light of the current and former 
rating criteria discussed above.  The 
examiner should review the claims folder 
prior to completing the examination.  The 
examiner is requested to express an 
opinion as to whether it is at least as 
likely as not that the veteran has 
osteoporosis and degenerative joint 
disease of the feet as a residual of 
frozen feet.

6.  Following completion of the 
foregoing, the RO should review the 
claims folder and ensure that all of the 
foregoing development has been conducted 
and completed in full.  If any 
development is incomplete, including if 
the requested examinations do not include 
all test reports, special studies, or 
opinions requested, appropriate 
corrective action should be implemented.  
Stegall v. West, 11 Vet. App. 268 (1998).

6.  After undertaking any development 
deemed appropriate in addition to that 
outlined above, the RO should 
readjudicate the claim of service 
connection for a low back disorder, the 
RO should consider Allen v. Brown, 7 Vet. 
App. 439 (1995) when making its 
determination.  The RO should also 
readjudicate the claims for increased 
ratings for frozen feet.

If any benefit sought on appeal is not granted to the 
veteran's satisfaction, the RO should issue a supplemental 
statement of the case.  A reasonable period of time for a 
response should be afforded. Thereafter, the case should be 
returned to the Board for final appellate review, if 
otherwise in order.  By this remand, the Board intimates no 
opinion as to any final outcome warranted. No action is 
required of the veteran until he is notified by the RO. 

This claim must be afforded expeditious treatment by the RO. 
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner. See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 
U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory 
Notes). In addition, VBA's Adjudication Procedure Manual, 
M21-1, Part IV, directs the ROs to provide expeditious 
handling of all cases that have been remanded by the Board 
and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 
38.02-38.03.



		
	Mark D. Hindin
	Member, Board of Veterans' Appeals


Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Veterans Appeals.  This remand is in the nature of a 
preliminary order and does not constitute a decision of the 
Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) 
(1999).