BVA9503460 DOCKET NO. 91-48 916 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to restoration of a 10 percent evaluation for bilateral frostbite of the feet. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. D. Regan, Associate Counsel INTRODUCTION The veteran had active service from July 1944 to October 1945. He was a prisoner of war of the German government from March 1945 to April 1945. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from an August 1990 rating decision of the Houston, Texas Regional Office (hereinafter "the RO") which, in pertinent part, granted service connection for peripheral neuropathy of the left lower extremity and of the right lower extremity and assigned 20 percent disability evaluations for each and reduced the disability evaluation for the veteran's service-connected bilateral frostbite of the feet to a noncompensable evaluation. The veteran took issue with the reduction regarding the frostbite. In August 1992, the Board remanded this appeal to the RO so that the veteran could be afforded a Department of Veterans Affairs (hereinafter "VA") examination by a specialist in peripheral vascular diseases to determine whether there were current residuals of frostbite of the feet. In March 1994, the RO again remanded this appeal for a VA examination to determine whether the veteran's present symptomatology was due to his service- connected peripheral neuropathy or whether it was a facet of his service-connected bilateral frostbite of the feet. The veteran has been represented throughout this appeal by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in reducing the disability evaluation for his service-connected bilateral frostbite of the feet from 10 percent to a noncompensable evaluation. The veteran contends, essentially, that his symptomatology indicates that a 10 percent evaluation is warranted for his service-connected bilateral foot disorder. 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(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the record supports the restoration of a 10 percent disability evaluation for the veteran's service-connected bilateral frostbite of the feet. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's bilateral frostbite of the feet is productive of mild symptoms and chilblains. CONCLUSION OF LAW The schedular criteria for a restoration of a 10 percent disability evaluation for bilateral frostbite of the feet have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.105(e), 3.344 and Part 4, including 4.3, 4.7 and Diagnostic Code 7122 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, an additional remand in order to allow for further development of the record is not appropriate. I. Historical Review The veteran's service medical records are not available. The veteran underwent a VA examination in April 1985. It was noted that the veteran had been a German prisoner of war. He reported that he had sustained trench foot at that time. The veteran indicated that he had burning pain in both feet which was worse in hot weather. The examiner commented that as regards to residuals of trench foot, the veteran had minimal disability. The veteran underwent an additional VA examination in September 1987. It was noted that both dorsalis pedis and posterior tibia pulses were present in both feet. The veteran had decreased sensation in the lower extremities and his deep tendon reflexes were absent in the lower extremities. The veteran had multiple corns and swelling of the ankles, but not the feet. The examiner indicated that the veteran had residuals of trench foot and frostbite with moderate disability. In September 1987, service connection was granted for frostbite of the feet. A 10 percent disability evaluation was assigned effective October 1, 1985. VA treatment records dated from February 1985 to November 1989 indicated that the veteran was treated for several different disorders including residuals of frostbite of the feet. A July 1988 treatment entry noted that the veteran had periodic blistering of the soles of the feet with severe neuropathy from frostbite. A September 1988 entry related that the veteran had burning pain in the toes of both feet. It was noted that the veteran was status post severe frostbite of the feet. The examiner noted that the veteran was very tender under the metatarsal heads and very tender bilaterally under the 3rd interspace with some tenderness in the 2nd and fourth interspace. A later September 1988 treatment entry noted an impression of peripheral neuropathy secondary to frostbite. The veteran underwent a VA examination in May 1990. The veteran's main complaint was burning in the soles of his feet. He indicated that the burning had become more constant over the last few years. The examiner reported that the veteran's feet revealed no toenail deformities. The lesser toes were intact and demonstrated good flexion and extension. There were no calluses on the soles of the feet with no tenderness over the heals. It was noted that there was a negative Tinel sign over the tarsal tunnel. There was also moderate tenderness to palpation over the third metatarsal head of the left foot. The examiner noted that there was no significant bunion deformity and that the posterior tibial tendon was intact. The diagnoses included status post bilateral frostbite of the feet, mildly symptomatic and burning pain, bilateral feet, with the need to rule out peripheral neuropathy which was moderately to severely symptomatic. The examiner also indicated diagnoses of third metatarsalia of the left foot which was mildly symptomatic as well as status post fungal infection of the feet. As to the neurological evaluation, the examiner noted that motor examination showed normal tone, mass and power in all extremities with the exception of a give way phenomenon of the distal extensors of both lower extremities. The veteran's strength in the distal extensors of both lower extremities was at least 4/5 bilaterally. Reflexes were grade 2/4 throughout the body and symmetrical bilaterally. Sensory exam was remarkable for diminished pinprick, temperature and light touch in a stocking- glove distribution. The examiner indicated an impression of peripheral neuropathy with burning dysesthesia, questionably related to nutritional or frostbite factors. Mild motor and sensory abnormalities were also noted. The examiner related that the veteran used a motorized wheelchair and walked with a cane due to diffuse joint pain. The examiner remarked that it would appear that dysesthesia was one of the veteran's most disabling factors. In August 1990, the RO granted service connection for peripheral neuropathy of the left lower extremity and of the right lower extremity and assigned 20 percent disability evaluations for each effective March 28, 1989. The RO reduced the veteran's disability evaluation for bilateral frostbite of the feet to a noncompensable evaluation effective March 28, 1989 on the basis that the frostbite symptoms were now minimal, and that symptoms of a compensable nature were now found to be due to peripheral neuropathy. II. Restoration of a 10 Percent Disability Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). A 10 percent evaluation is warranted for residuals of bilateral frozen feet with mild symptoms and chilblains. A 30 percent evaluation requires persistent moderate swelling, tenderness and redness, etc. 38 C.F.R. Part 4, Diagnostic Code 7122 (1993). Where there is a question as to which of two disability evaluations shall be applied, 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 (1993). As noted above, in September 1987, service connection was granted for bilateral frostbite of the feet and a 10 percent disability evaluation was assigned with an effective date of October 1, 1986. The veteran's disability evaluation for bilateral frostbite of the feet was reduced to a noncompensable evaluation pursuant to a August 1990 rating decision which granted compensable ratings for peripheral neuropathy finding that the compensable manifestations previously ascribed to frostbite were associated with the peripheral neuropathy. The veteran underwent a VA cardiovascular examination in November 1992. It was noted that the veteran had a history of degenerative joint disease and that he complained of back and left hip pain accompanied by left lower extremity discomfort. The examiner reported that there were no gross motor or sensory abnormalities. Superficial temporal pulses, carotid pulses and radial pulses were symmetrically equal and full bilaterally. Femoral pulses were symmetrical and equal and diminished only modestly. There was no palpable femoral thrills identified and both popliteal pulses were palpable and full bilaterally and were symmetrical to palpation. The veteran's posterior and dorsalis pedis pulses could not be appreciated to palpation and there was minimal peripheral edema. The extremities were dry without ulceration or gangrene and there was no evidence of ulceration or the chronic rubor associated with ischaemia. It was noted that the veteran denied any dysesthias or parethesias. As to an impression, the examiner indicated that most of the veteran's disability was related to arthritis and not due to peripheral vascular disease. The veteran's disability was noted to be minimally due to peripheral vascular occlusive disease. A November 1992 radiology report noted that segmental limb pressures revealed adequate blood flow to the lower extremities. It was observed that the veteran's neuropathy did not seem to be of vascular etiology. The veteran underwent an additional VA medical examination in May 1994. It was noted that the veteran had no peripheral edema and that the peripheral pulses were palpable. The veteran underwent a VA neurological examination in July 1994. The veteran had complaints of pain in his legs including his feet since service. He related that he had a burning pain in the bottom of the feet. He indicated that the pain would occur particularly at night. The veteran reported that he had aching pain in his hamstring on sitting and that he had numbness in his feet. The examiner indicated that there was decreased hair and shiny skin in the distal lower extremities. The motor exam showed 5/5 strength throughout with a significant element of give way secondary to pain. Pinprick was absent in the toes with decreased pinprick and temperature to the mid calf region. Vibration was absent in the toes and joint position sense was also mildly decreased in the toes. The examiner indicated an impression of distal, painful, sensory polyneuropathy with associated sensory ataxia. The examiner noted that the veteran had a history of extreme cold exposure with frozen feet and deficits, particularly effecting the distal lower extremity compatible with cold injury to his peripheral nerves. As a result, it was observed that the veteran had been left with disabling pain and numbness effecting the large greater than small fibers which had resulted in sensory ataxia. It was noted that the veteran had denied symptoms in his upper extremities, but that the examination did show milder sensory deficits in the distal upper extremity which could also have been related to cold exposure history. The examiner commented that the veteran did have suggestive evidence of diabetes which, if present, could be contributing to a peripheral neuropathy, particularly if there was no evidence of previous nerve damage in his upper extremities. The Board has made a careful longitudinal review of the record. It is observed that a September 1988 VA treatment record indicated an impression of peripheral neuropathy secondary to frostbite. The May 1990 VA examination report indicated diagnoses including status post bilateral frostbite of the feet, mildly symptomatic and burning pain, bilaterally, with the need to rule out moderately to severely symptomatic peripheral neuropathy. As to the neurological evaluation, the examiner indicated an impression of peripheral neuropathy with burning dysesthesia, questionably related to nutritional or frostbite factors. The November 1992 VA examination indicated that most of the veteran's disability was related to arthritis and not to peripheral vascular disease. The July 1994 VA neurological examination indicated an impression of distal, painful sensory polyneuropathy with associated sensory ataxia. The examiner noted that the veteran had a history of extreme cold exposure with frozen feet and deficits, particularly effecting the distal lower extremity and compatible with cold injury to his peripheral nerves and that as a result, he had been left with disabling pain and numbness effecting the large greater than small fibers which had resulted in sensory ataxia. Frankly, the record is unclear as to the clinical basis for the peripheral neuropathy and the Board is unsure whether the RO deemed it secondary to frostbite, or otherwise associated with the veteran's prisoner of war experiences. The Board finds that the clinical evidence of record indicates symptomatology productive of mild residuals of bilateral frostbite of the feet. Accordingly, restoration of the 10 percent disability evaluation for bilateral frostbite of the feet is warranted. We would point out the 1990 examination indicated mildly symptomatic residuals of frostbite, and the subsequent examinations do not show more. Thus a 10 percent rating and no more is warranted. The Board has considered the rules against pyramiding as defined in 38 C.F.R. § 4.14 (1993), and does not find they contravene restoration of the 10 percent rating for frostbite. Essentially, frostbite in the most severe cases is more likely to result in peripheral vascular, rather than nerve difficulties. The United States Court of Veterans Appeals (COVA) in Estaban v. Brown, 6 Vet.App. 259 (1994), has indicated that conditions are to be rated separately unless they constitute the same disability or same manifestation. Based upon this rationale, 38 C.F.R. § 4.14 does not preclude a 10 percent restoration here. We have considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1993), whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals (hereinafter "the Court") in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, we find that the evidence does not suggest that the veteran's bilateral frostbite of the feet is productive of such an exceptional or unusual disability picture so as to render impractical the applicability of the regular schedular standards and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1993). ORDER A 10 percent evaluation for bilateral frostbite of the feet is restored subject to the laws and regulations governing the grant of monetary benefits. E. W. SEERY 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.