Citation Nr: 0001581 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-16 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased rating for residuals of frozen feet (trench foot), each foot currently evaluated as 30 percent disabling. 2. Entitlement to service connection for Guillain-Barre syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. Pritchett, Associate Counsel INTRODUCTION The veteran served on active duty from December 1942 to August 1945. He is a veteran of numerous campaigns in the European-African-Middle Eastern theater of operations. His decorations include the Combat Infantryman Badge and the Purple Heart Medal. This appeal arises from a decision by the Louisville, Kentucky, Department of Veterans Affairs (VA) Regional Office (RO). The veteran has been rated permanently and totally disabled for pension purposes, since January 1987. He has been entitled to special monthly pension based on the need for regular aid and attendance since the same date. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal with respect to the increased rating issue has been obtained. 2. The service-connected residuals of frozen feet were manifested by edema, onychomycosis and atrophic skin changes before and after January 12, 1998. CONCLUSION OF LAW The criteria for a disability rating greater than 30 percent for residuals of frozen feet for each foot have not been met prior to January 12, 1998, or afterward. 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 A veteran's assertion of an increase in severity of a service-connected disorder constitutes a well-grounded claim requiring the VA fulfill the statutorily required duty to assist 38 U.S.C.A. § 5107(a) because it is a new claim and not a reopened claim. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board is also satisfied that all relevant facts pertinent to this issue have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist him as mandated by law. 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, and 4.42 (1999), the Board has reviewed all the evidence of record pertaining to the history of the veteran's residuals of frozen feet and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to the disability at issue. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Factual Background Service connection for the veteran's residuals of frozen feet was granted by rating decision dated in August 1945. The condition stabilized and a 10 percent evaluation was awarded by rating decision dated in June 1946. That evaluation was continued until 1994. A February 1994 VA discharge summary states that the veteran had been admitted because of a discharge of his right great toe. On admission, an area of dry exudate was noted over a 1.5 by 2-centimeter wound. An X-ray revealed possible osteomyelitis of the top part of his right great toe. In March, he complained that his right foot was puffier and more purplish than in the past. The physician included edema among his diagnoses. In May 1994, an assessment of chronic venous insufficiency was made. The evaluation was increased to 30 percent by rating decision dated in August 1994 based on the records noted above, effective from August 1994. In July 1996, the veteran submitted an increased rating request. An August 1996 VA discharge summary is negative for evidence of changes in the veteran's service-connected foot disabilities. A September 1998 VA cold injury examination report states that the veteran had moderate to severe edema of his feet, that they were purplish-red in color, and warm and dry without ulceration. No hair was present below the mid-calf. He had onychomycosis of all of his toenails and parts of the great toenails were missing. The skin was scaly and dry. His feet had sensation to touch. The pertinent diagnosis was history of cold injury, frozen feet, with secondary onychomycosis and diminished circulation, swelling and atrophic skin changes. A November 1998 addendum to the report states that vascular studies of November 1995 had been reviewed and that the neurological dysfunction that caused the veteran to lose the use of his hands and feet was attributed to Guillain-Barre syndrome. The sequelae of the veteran's cold injury were hypersensitivity to cold, fungal infections of the toenails, venous insufficiency and osteoporosis. A rating decision dated in July 1999 increased the evaluation for each foot to 30 percent for each foot, effective January 12, 1998. Analysis At the outset, the Board notes that the July 1999 rating decision cited The Merck Manual as not including cold injuries among the causes of Guillain-Barre syndrome. The veteran has submitted a statement in lieu of a VA Form 646 and an Informal Hearing Presentation since that rating decision. Therefore, the Board finds that there is no violation of the rule announced in Thurber v. Brown, 5 Vet. App. 119 (1993). During the pendency of the veteran's appeal, the VA promulgated new regulations amending the rating criteria for residuals of cold weather injuries, effective January 12, 1998. "[W]here the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to [the veteran] . . . will apply unless Congress provided otherwise or permitted the Secretary of Veterans Affairs (Secretary) to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The Board notes that in its July 1999 rating decision, the RO applied both the previous and the amended versions of the regulations in determining that a 30 percent rating was warranted for each foot. Accordingly, the Board may similarly consider each version of the regulations without determining whether the veteran will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Where compensation is awarded or increased pursuant to any Act or administrative issue, the effective date of such an award or increase may not be earlier than the effective date of the Act or administrative issue. See 38 U.S.C.A. § 5110(g) (West 1991). This statute precludes the application of a later, liberalizing law to a claim prior to the effective date of the liberalizing law. Therefore, the Board may not apply the revised rating provisions to the period prior to January 12, 1998. Prior to January 12, 1998, residuals of frozen feet (immersion foot) were rated based on bilateral or unilateral involvement. Bilateral frozen feet with mild symptoms and chilblains warranted a 10 percent rating; a 30 percent rating required persistent moderate swelling, tenderness, redness, etc., bilaterally; while a 50 percent rating was for application with loss of toes, or parts, and persistent severe symptoms bilaterally. 38 C.F.R. § 4.104, Diagnostic Code 7122 (effective prior to January 12, 1998). With the changes to the rating criteria for cardiovascular disabilities that became effective on January 12, 1998, residuals of cold weather injuries were rated essentially as follows: 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 30 percent. With 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 20 percent. With pain, numbness, cold sensitivity, or arthralgia 10 percent. Note (1): Amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy should be separately evaluated under other diagnostic codes. Each affected part (hand, foot, ear, and nose) is to be evaluated separately and the ratings combined, if appropriate, in accordance with Secs. 4.25 and 4.26. 38 C.F.R. § 4.104, Diagnostic Code 7122 (1998). Later in 1998, VA promulgated further minor changes to the rating criteria for Diagnostic Code 7122. The regulation now provides as follows: 7122 Cold injury residuals: With the following in affected parts: arthralgia or other pain, numbness, or cold 30 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) Arthralgia or other pain, numbness, or cold 20 sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis) 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 §§ 4.25 and 4.26. 38 C.F.R. § 4.104 (1999). In the present case, the veteran's feet exhibit onychomycosis of all toenails and osteoporosis that have been medically attributed to his cold weather injury in addition to his sensitivity to cold. This comports with the maximum evaluation provided under diagnostic code 7122 both before and after the change in the rating criteria. The examiner attributed the veteran's neurological dysfunction regarding his hands and feet to nonservice-connected disability. Nonservice-connected symptoms may not be considered in determining the service-connected evaluation. 38 C.F.R. § 4.14 (1999). The Board has considered the application of alternative diagnostic codes; however, the veteran's disability is most aptly described under Diagnostic Code 7122. See Butts v. Brown, 5 Vet. App. 532 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Therefore, the Board is compelled to conclude that the weight of the evidence is against the veteran's claim and that an increased evaluation for residuals of frozen feet (trench foot) is not warranted. An extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1999) does not appear to be for application in this case because the service-connected residuals of frozen feet, while significantly disabling, have not, by themselves, resulted in frequent hospitalizations or marked interference with employment such as to render impractical the regular schedular standards. The Board has carefully reviewed the entire record in this case; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107(b). ORDER An increased evaluation for residuals of frozen feet (trench foot) of each foot is denied. REMAND It is contended by and on behalf of the veteran that he has Guillain-Barre syndrome as a consequence of service or as a proximate result of his service-connected residuals of frozen feet. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.310(a) (1999). A July 1999 rating decision denied service connection for Guillain-Barre syndrome. The veteran's representative submitted a notice of disagreement in October 1999, and the case was certified to the Board on the increased rating issue later the same month. A statement of the case has not been provided regarding the service connection issue. Under the holding of the United States Court of Appeals for Veterans Claims in Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), the Board must remand this issue to the RO for issuance of a statement of the case. In November 1999, after the case had been certified to the Board, a statement was received from Jon Anthony Arvin, M.D., dated the same month, suggesting that the veteran's severe case of frostbite had worsened his nonservice-connected Guillain-Barre syndrome. See Allen v. Brown, 7 Vet. App. 439 (1995). In view of the foregoing, the case is remanded to the RO for the following actions: After undertaking any development deemed necessary in view of Dr. Arvin's opinion noted above, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). WILLIAM W. BERG Acting Member, Board of Veterans' Appeals