Citation Nr: 1045620 Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 05-34 253 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida (RO)
THE ISSUES
1. Entitlement to an initial evaluation greater than 10 percent for residuals of cold injury of the right foot.
2. Entitlement to an initial evaluation greater than 10 percent for residuals of cold injury of the left foot prior to July 14, 2004.
3. Entitlement to an initial evaluation greater than 20 percent for residuals of cold injury of the left foot from July 14, 2004.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The Veteran had verified active service from February 1951 to November 1952. His service records show that he served in the Republic of Korea during the Korean Conflict and that he was decorated with the Combat Infantryman Badge.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by a Department of Veterans Affairs (VA) Regional Office, which granted the Veteran service connection for cold injury residuals of the left and right foot and assigned a 10 percent rating to each foot, effective December 17, 2002. During the course of the appeal, an October 2004 rating decision increased the rating assigned for cold injury residuals of the left foot to 20 percent, effective July 14, 2004. In adjudicating this appeal, the Board must consider whether the case warrants the assignment of additional separate ratings for the service-connected cold injury residuals for each foot for separate periods of time, from December 17, 2002, to the present, based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999).
During the course of the appeal, the case was remanded to the RO by the Board for additional evidentiary and procedural development in January 2008, October 2009, and August 2010. The present ratings assigned to the cold injury residuals of each foot were confirmed by the RO, most recently in a September 2010 supplemental statement of the case/rating decision. Thereafter, the case was returned to the Board in October 2010 and the Veteran now continues his appeal.
The Veteran appeared at the RO to present oral testimony and evidence in support of his appeal in a May 2006 hearing before a Decision Review Officer and an April 2010 hearing before the undersigned traveling Veterans Law Judge. The Board notes that the transcripts of these hearings have been obtained and associated with the Veteran's claims file for the Board's consideration.
Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2010).
FINDINGS OF FACT
1. For the period from December 17, 2002 to March 8, 2010, residuals of cold injury of the right foot are manifested by subjective complaints of foot pain, numbness, and cold sensitivity, with no clinical evidence of related neurological, vascular, or dermatological impairment, which produce no more than moderate disability.
2. For the period from March 9, 2010, residuals of cold injury of the right foot are manifested by radiographic evidence of marked degenerative changes, sclerosis, and narrowing of the first metatarsophalangial joint, with subjective complaints of foot pain, numbness, and cold sensitivity, with no clinical evidence of related neurological, vascular, or dermatological impairment, which produce no more than moderately severe disability.
3. For the period from December 17, 2002 to July 13, 2004, residuals of cold injury of the left foot are manifested by subjective complaints of foot pain, numbness, and cold sensitivity, with no clinical evidence of related neurological, vascular, or dermatological impairment, which produce no more than moderate disability.
4. For the period from July 14, 2004, residuals of cold injury of the left foot are manifested by subjective complaints of foot pain, numbness, and cold sensitivity, with no clinical evidence of related neurological, vascular, or dermatological impairment, with radiographic evidence of minimal degenerative changes of the small joints, which produce no more than moderately severe disability.
CONCLUSIONS OF LAW
1. The criteria for an initial evaluation greater than 10 percent for residuals of cold injury of the right foot prior to March 9, 2010, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.104, Diagnostic Code 5284-7122 (2010).
2. The criteria for a 20 percent initial evaluation for residuals of a cold injury of the right foot from March 9, 2010, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.104, Diagnostic Code 5284-7122 (2010).
3. The criteria for an initial evaluation greater than 10 percent for residuals of cold injury of the left foot prior to July 14, 2004 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.104, Diagnostic Code 5284-7122 (2010).
4. The criteria for an initial evaluation greater than 20 percent for residuals of cold injury of the left foot from July 14, 2004 have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.71a, 4.104, Diagnostic Code 5284-7122 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duty to notify and assist
The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).
Initially, the Board notes that the issues now on appeal all flow downstream from an August 2003 rating decision, which initially established service connection for residuals of cold injury of the left and right foot, effective from December 17, 2002, with initial compensable ratings assigned to each. The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490- 91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case is satisfied. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).
In addition, the duty to assist the Veteran has been satisfied in this case. All relevant records are in the Veteran's claims file and were reviewed by both the RO and the Board in connection with his claims. Nothing in the record indicates the Veteran has identified the existence of any relevant evidence that is not of record. He has had the opportunity to present evidence and argument in support of his claim. Further, he was provided with VA medical examinations in August 2003, August 2004, and June 2006. The Board notes that the aforementioned examination reports are adequate for adjudication purposes in that they each discuss in sufficient detail the medical state of the Veteran's bilateral foot disability due to cold injury in the context of his relevant clinical history, and that all findings and conclusions presented by the examiners are accompanied by a detailed supportive rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2009). All private and VA medical records pertinent to the Veteran's treatment for his bilateral residuals of cold injuries to his feet for the time period encompassed by this decision's adjudication on the merits (i.e., from December 17, 2002 to the present) have been duly obtained and associated with the claims file and the evidence in this regard appears complete. In this regard, the Board notes that current treatment records up to March 2010 have been obtained and associated with the Veteran's claims file, and that furthermore the Veteran had affirmed in an October 2010 written statement that there was no additional evidence to submit. Although the Board is aware that the Veteran has reported in correspondence dated October 2010 that his sources of income included Social Security Administration (SSA) benefits, it is evident from the record that the Veteran, who is over 80 years old, is currently drawing these benefits due to retirement and not on account of disability. Thus, in view of the considerable evidentiary development that has already been undertaken during the course of this appeal, the Board finds that the duty to assist has been satisfied in this case.
The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). When a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. §§ 3.102, 4.3 (2010). The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).
In this, and in other cases, only independent medical evidence may be considered to support medical findings. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Consequently, his contentions alone cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1) (2010).
Increased ratings
Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. An evaluation of the level of disability present also includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2010). Where there is a reasonable doubt as to the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). The use of manifestations not resulting from service- connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2010). When an unlisted condition is encountered it will be permissible to rate 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 (2010). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21 (2010). In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The Veteran's service-connected bilateral foot disabilities are rated under the criteria for evaluating foot injuries under 38 C.F.R. § 4.71a, Diagnostic Code 5284, or cold weather injury residuals under 38 C.F.R. § 4.104, Diagnostic Code 7122.
38 C.F.R. § 4.71a, Diagnostic Code 5284, provides for the assignment of a 10 percent evaluation for foot injury residuals that are productive of moderate impairment. Assignment of a 20 percent evaluation is warranted for foot injury residuals that are productive of moderately severe impairment. Assignment of a 30 percent evaluation is warranted for foot injury residuals that are productive of severe impairment. Assignment of a 40 percent evaluation is warranted only for actual loss of use of the disabled foot.
38 C.F.R. § 4.104, Diagnostic Code 7122, provides for the assignment of a 10 percent evaluation for cold injury residuals manifested by arthralgia or other pain, numbness, or cold sensitivity. Assignment of a 20 percent evaluation is warranted for cold injury residuals manifested by 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). Assignment of a 30 percent evaluation is warranted for cold injury residuals manifested by 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, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis).
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 38 C.F.R. §§ 4.25 and 4.26 (2010).
Pertinent factual background
As relevant, the evidence pertinent to the period from December 17, 2002, to the present, which includes private and VA clinical records and the Veteran's written statements and oral testimony presented at hearings in May 2006 and April 2010, shows that the Veteran's service-connected residuals of cold injury of his right foot are manifested by subjective complaints of hyperhidrosis, pain, numbness and tingling sensations, sensitivity to pressure, and hypersensitivity to cold weather, even during the summer months. The Veteran attributes difficulties with ambulation and walking distances of more than several blocks, including problems with maintaining balance on his feet, to numbness and loss of sensation.
A VA treatment note dated July 13, 2002, shows that the Veteran presented complaints of bilateral foot pain with skin discoloration, left perceived to be worse than right, with sensitivity to cold and intermittent numbness, which he treated with non-prescription pain medications which only provided occasional relief.
VA examination of the Veteran's feet in August 2003 and August 2004 revealed dry skin, no ulcers, no edema, no skin discoloration, and normal arterial pulses and vascular circulation. Hair growth was normal and toenails were clinically normal, with no deformity or atrophy, and no scars were observed. Neurological examination revealed normal touch, position, and vibration sense, with normal reflexes, range of motion, and motor strength, and no muscle atrophy or weakness. All toes were intact.
Although a notation of peripheral neuropathy of the Veteran's feet from frostbite was noted on a private treatment note dated in April 2006, a June 2006 VA examination shows normal clinical findings of his feet that mirror the findings obtained on previous examinations in August 2003 and August 2004, and normal neurological findings that caused the examiner to characterized the Veteran's reported hypoesthesia as being questionable. The Veteran displayed a normal gait. Varicosities of his veins were noted on his calves of approximate onset seven years earlier, with associated spider veins appearing on his ankles, but these were not clinically linked by the examiner to the Veteran's history of frostbite. The examiner presented the following commentary:
(The Veteran) does have history of frostbite in the past. Other than he is complaining of pain in the feet, I do not see any overt sign of ischemia in the feet. He says that his feet always feel cold, but when I palpated his feet, they are actually warm. Both arteries of both feet are well felt. He has no evidence for any gangrene. No hyperhidrosis either and no nail changes. I am not really convinced whether his pain in his feet is really even due to frostbite as I do not see any clear evidence of any ischemia. His skin elasticity is fine. There is no tight skin. . . (consistent with) patients with frostbite.
The June 2006 VA examiner went on to relate the Veteran's subjective leg pain, skin discoloration in the left leg, and edema to varicose veins of the right and left leg, left worse than right, with evidence of development of early phlebitic syndrome, but the examiner did not find these to be related to the Veteran's history of frostbite.
An April 2007 VA outpatient treatment report shows that the Veteran complained of bilateral foot pain with skin changes, coldness of the feet even during summer months, and unsteadiness on standing and walking that he attributed to his history of frostbite. The assessment with history of frostbite. The examination also noted varicose veins with associated skin changes affecting his lower extremities, left worse than right, but did not present any opinion relating them to frostbite.
Private medical treatment reports dated in March 2008 and April 2008 from the Veteran's treating physician, Margaret Chang, M.D., show that the Veteran presented with complaints of bilateral foot pain with numbness and a pins-and-needles sensation, which he related to his history of frostbite. Sensory examination revealed diminished pin prick sensation to the distal third of his feet, bilaterally. His gait and stance were normal. The impression was sensory peripheral neuropathy and history of bilateral frostbite of the feet. In a September 2009 statement, Dr. Chang reported that the Veteran "had frostbite on both legs and feet. This has discolored skin and toenails."
VA treatment notes dated in March 2008, January 2009 and September 2009 show that the Veteran reported having bilateral foot pain whose frequency would occur off and on. The prescribed treatment plan was to administer a minimal amount of non- prescription acetaminophen, if needed.
VA electromyographic and nerve conduction studies performed in September 2009 and October 2009 to address the Veteran's previous bilateral foot complaints revealed, in pertinent part, that all nerve conduction studies were within normal limits and that there was no electrophysiological evidence of focal or diffuse peripheral neuropathy involving the Veteran's lower extremities, although a small fiber sensory neuropathy could not be ruled out using standard nerve conduction study techniques.
A January 2010 VA treatment report shows that the Veteran complained of bilateral foot pain that he related to his history of frostbite during Korean War service, which caused him discomfort when walking or playing golf. The report referenced electromyographic and nerve conduction studies conducted several months earlier that revealed no evidence of focal or diffuse peripheral neuropathy, although it suggested a small fiber sensory neuropathy. Otherwise, examination of his feet in January 2010 was normal on neurological assessment, with no evidence of edema or circulatory abnormalities of his ankles and feet, bilaterally.
X-rays conducted by VA of the Veteran's feet on March 9, 2010, revealed marked degenerative changes of the first metatarsal phalangeal joint of the right foot and minimal degenerative changes of the small joints, but with unremarkable soft tissues and no soft tissue swelling or calcifications, no stress fracture, no calcaneal spur, no arterial vascular calcification, and no hallux valgus deformity. X-ray of the left foot revealed minimal degenerative changes of the small joints of the left foot with otherwise normal findings and no stress fracture, no calcaneal spur, and no arterial vascular calcifications detected.
(a.) Entitlement to an initial evaluation greater than 10 percent for residuals of cold injury of the right foot; an initial evaluation greater than 10 percent for residuals of cold injury of the left foot prior to July 14, 2004; and an initial evaluation greater than 20 percent for residuals of cold injury of the left foot from July 14, 2004.
The Board has considered the pertinent clinical and testimonial evidence discussed above, and finds that notwithstanding the Veteran's subjective complaints of bilateral foot pain, numbness, and cold sensitivity, the objective medical evidence does not demonstrate that his residuals of cold injury for his right foot warrant the assignment of an initial evaluation greater than 10 percent prior to March 9, 2010, although the radiographic evidence of severe arthritic changes of the first metatarsophalangial joint of his right foot on X-ray examination on March 9, 2010, is sufficient to allow a rating increase to 20 percent (and no higher) as of this date. The evidence, however, does not demonstrate that residuals of a cold injury of the left foot warrant an initial evaluation greater than 10 percent prior to July 14, 2004, or an evaluation greater than 20 percent from July 14, 2004, onwards.
The evidence pertaining to the Veteran's feet for the period prior to March 9, 2010, shows that, notwithstanding the 2008 treatment notes and September 2009 statement of Dr. Chang, in which the physician found evidence of sensory peripheral neuropathy and discolored skin and toenails, the VA clinical records dated prior to and after Dr. Chang's notes and statement fail to corroborate her findings of skin and toenail discoloration of the Veteran's feet or actual neurological impairment attributable to his history of frostbite. The VA examinations of the Veteran's feet consistently show normal skin and skin color and normal toenails, and the electromyographic and nerve conduction studies conducted in 2009 conclusively demonstrated no evidence of focal or diffuse peripheral neuropathy. Although the neurological studies could not rule out a small fiber sensory neuropathy, this finding in and of itself does not conclusively mean that a small fiber sensory neuropathy is present, and in any case the VA studies do not present any opinion attributing it to the Veteran's history of frostbite injury.
Ultimately, the Veteran's bilateral cold injury residuals of his feet are manifested by his subjective complaints of pain, numbness, and cold sensitivity, but the overall disability picture collectively presented by the clinical evidence does not objectively demonstrate that the Veteran's bilateral cold injury residuals of his feet are manifested by tissue loss, nail abnormalities, color changes, locally impaired sensation, or hyperhidrosis, or X-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis) until March 9, 2010.
As of March 9, 2010, X-rays conducted by VA reveal the presence of marked degenerative changes, sclerosis, and narrowing of the first metatarsophalangeal joint of the Veteran's right foot, and minimal degenerative changes of the small joints of the left foot. Although the clinical evidence does not indicate whether or not these arthritic changes noted on X-ray are attributable to the Veteran's history of cold injury, the Board will afford the Veteran the benefit of the doubt and consider them to be associated with his service-connected disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
As the Veteran's arthritis of his right first metatarsophalangeal joint (with sclerosis and joint narrowing) is first noted on X- ray taken on March 9, 2010, and clinically characterized as marked by the reviewing radiologist, this objective finding, when considered along with the Veteran's subjective symptomatic complaints, present a disability picture that more closely approximate the criteria for a 20 percent evaluation on the basis of arthralgia or other pain, numbness, and cold sensitivity plus X-ray abnormalities (osteoarthritis) under 38 C.F.R. § 4.104, Diagnostic Code 7122, such that a rating increase to this level is warranted under 38 C.F.R. § 4.7 as of March 9, 2010. Alternatively, the Veteran's right foot impairment may also be characterized as being moderately severe on the basis of marked arthritic changes and subjective complaints of pain and cold sensitivity, thereby also meeting the criteria for a 20 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5284. However, the Board does not find that the evidence demonstrates a level of impairment associated with cold injury residuals of the right foot that meets the criteria for an evaluation above 20 percent under either Diagnostic Code 5284 or 7122. The level of impairment does not more closely approximate the criteria for severe impairment under Diagnostic Code 5284, as a March 2008 VA outpatient note reflects that the Veteran's foot pain was deemed to warrant no more than the minimal amount of non-prescription acetaminophen, as needed, for treatment. Furthermore, a January 2010 VA treatment report reflects that the Veteran reported being able to play golf despite his foot complaints, thus indicating no more than moderately severe impairment. Lastly, the evidence does not objectively demonstrate the actual presence of tissue loss, nail abnormalities, color changes, locally impaired sensation, or hyperhidrosis that has been clinically attributed to his history of cold injury of the right foot, in addition to his arthritic changes and subjective complaints of pain and sensitivity to cold that has been currently demonstrated, such that a 30 percent evaluation under Diagnostic Code 7122 may be assigned to his right foot.
With regard to the Veteran's cold injuries of his left foot, applying the criteria of Diagnostic Code 5284, the Board finds that the clinical evidence noting only the Veteran's ongoing subjective complaints of bilateral foot pain, numbness, and cold sensitivity, in the absence of any definitive clinical evidence of additional vascular, dermatological, or neurologic impairment attributable to frostbite injury, does not present a disability picture indicative of more than moderate impairment of this foot, which only warrants the assignment of a 10 percent evaluation. In this regard, although the Veteran complains of impaired use of his left foot due to his subjective complaints, the Board notes that a January 2010 VA treatment report reflects that the Veteran complained of discomfort when playing golf, thereby indicating by his evident ability to participate in a physical sport that is played in the upright and standing position, that his left foot disability is not productive of more than moderate impairment. Nevertheless, the Board will not disturb the RO's award of a 20 percent evaluation for the Veteran's left foot cold injury residuals, effective July 14, 2004. The Board has considered the March 2010 X-ray finding of minimal degenerative changes of the small joints of the left foot, but does not find that the presence of such minimal arthritic changes provides a basis to allow for the assignment of an evaluation greater than 20 percent. A VA March 2008 outpatient note reflects that the Veteran's foot pain was deemed to warrant no more than the minimal amount of non-prescription acetaminophen, as needed, for treatment. The evidence does not otherwise objectively demonstrate that the minimal degenerative changes affecting his left foot contribute additional disabling symptoms as to warrant the assignment of a 30 percent evaluation for severe impairment due to left foot injury residuals under Diagnostic Code 5284. The evidence also does not demonstrate that there is actual tissue loss, nail abnormalities, color changes, locally impaired sensation, or hyperhidrosis clinically attributable to his history of cold injury of the left foot, in addition to his demonstrated minimal arthritic changes and subjective complaints of pain and sensitivity to cold, such that a 30 percent evaluation under Diagnostic Code 7122 may be assigned to the left foot.
In view of the foregoing discussion, the Board concludes that the weight of the evidence is against the Veteran's claims for increased evaluations above 10 percent for cold injury residuals of his right foot prior to March 9, 2010; above 10 percent for cold injury residuals of his left foot prior to July 14, 2004; and above 20 percent for cold injury residuals of his left foot from July 14, 2004. The Board also concludes that the evidence supports the assignment of a 20 percent evaluation, and no higher, for cold injury residuals of his right foot from March 9, 2010.
(b.) Extraschedular consideration
To the extent that the Veteran claims that his service-connected bilateral cold injury residuals of his feet are productive of impairment that transcends the normal rating schedule, the Board finds that there is no objective clinical evidence of an exceptional or unusual disability picture associated with his cold injury residuals of his feet, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. The clinical evidence establishes that the Veteran's service-connected disabilities, by themselves, do not produce a greater impact on his occupational capacity that renders impractical the criteria contemplated by the applicable rating schedule as contained in 38 C.F.R. § 4.71a, Diagnostic Code 5284, and 38 C.F.R. § 4.104, Diagnostic Code 7122. The evidence indicates that the Veteran does not require frequent hospitalization for his cold injury residuals of his feet. The Veteran is also demonstrably able, by his own admission, to engage in physical activities such as playing golf. As such, the current state of his impairment of either foot due to cold injury residuals is adequately contemplated in the criteria for the schedular evaluations presently assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the Board is not required to discuss the possible application of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) (2010). See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Fisher v. Principi, 4 Vet. App. 53 (1993).
ORDER
An initial evaluation greater than 10 percent for residuals of cold injury of the right foot prior to March 9, 2010 is denied.
A 20 percent initial evaluation for residuals of cold injury of the right foot from March 9, 2010 is granted, subject to controlling regulations applicable to the payment of monetary benefits.
An initial evaluation greater than 10 percent for residuals of cold injury of the left foot prior to July 14, 2004 is denied.
An initial evaluation greater than 20 percent for residuals of cold injury of the left foot from July 14, 2004 is denied.
____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs