Citation Nr: 0324043 Decision Date: 09/16/03 Archive Date: 09/23/03 DOCKET NO. 98-13 876A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for residuals of frostbite of the feet. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The veteran served on active duty from December 1947 to February 1952. This matter originally came before the Board of Veterans' Appeals (Board) as a result of a rating decision entered in June 1997 by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. By a September 2002 memorandum to its evidence development unit, the Board requested that additional evidentiary development be undertaken, and following the completion of the requested actions, the case has been returned for further review. FINDINGS OF FACT 1. The veteran engaged in combat with the enemy during his period of active duty. 2. The veteran sustained an inservice cold injury involving his feet while serving in combat operations in Korea, including the campaign at the Chosin Reservoir. 3. There is an approximate balance between positive and negative evidence on file that the veteran has residuals of frostbite of his feet as a result of an inservice cold injury in Korea, which are manifested by neuropathic changes and foot pain. CONCLUSION OF LAW Residuals of frostbite of the feet were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION It is noted that, subsequent to the veteran's initiation of his claim in 1997, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), was signed into law. The VCAA is codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and VA has issued regulations implementing the VCAA; specifically, 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2002). In light of the Board's disposition of this claim in the veteran's favor, the need to review whether full compliance has been achieved with respect to the changes brought about by the VCAA is obviated. As well, as noted above, the Board undertook development of this appeal by its September 2002 memorandum. Notwithstanding the holding in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), which invalidated the legal authority permitting the Board to develop cases on its own, because the Board herein allows the requested benefit reviewing the record in order to ascertain whether all of the requested actions were accomplished is unnecessary. See Stegall v. West, 11 Vet. App. 268 (1998). Analysis Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. In order for service connection for a particular disability to be granted, a claimant must establish that he has such disability, and that there is a relationship between the disability and an injury or disease incurred in service or some other manifestation of the disability during service. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Service department records show the veteran's engagement in combat with the enemy during his period of active duty, based on his receipt of the Purple Heart Medal for wounds sustained in combat. See VAOPGCPREC 12-99, 65 Fed. Reg. 6257 (2000). As such, the provisions of 38 U.S.C.A. § 1154 are for application in this matter. In Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996), it was held that 38 U.S.C.A. § 1154(b) sets out a three-step test: First, it must be determined if a veteran has submitted satisfactory lay or other evidence of service incurrence of an injury; second, to decide if such evidence is satisfactory, it must be determined if the evidence proffered is consistent with the circumstances, conditions, or hardships of the service; and, third, if steps one and two are satisfied, the veteran gains a rebuttable factual presumption of "service-connection," which can only be upset by clear and convincing evidence to the contrary supplied by the Government. In oral and written testimony furnished by the veteran, it is reported that he suffered a cold injury to his feet when engaged in various campaigns in Korea, including that in vicinity of the Chosin Reservoir. Allegations are advanced to the effect that he was furnished boots which were inadequate to ward off the effects of the punishingly extreme cold temperatures he encountered in Korea, particularly at the Chosin Reservoir. To illustrate that point during his RO hearing in March 2000, he produced photographs and/or texts exhibiting such footwear, and while such evidence was not made a part of the claims folder, the RO's decision review officer has indicated that the footwear shown appeared to be "insufficient." Throughout, the veteran has consistently maintained that he experienced a burning of the feet since his departure from Korea that encompasses pain and sensory deficits. Service department records indicate that the veteran served in the United States Marine Corps as a Marine rifleman and that he participated in multiple combat operations in Korea, including the assault and seizure of Inchon, the capture of Seoul, and, most notably, the Wonson-Hungnam-Chosin campaign from October to December 1950. Service medical records are negative for complaints or findings relating to frostbite of the feet, and such complaints or findings are not shown in postservice medical data until many years following the veteran's discharge from service in February 1952. Nevertheless, on the basis of the veteran's credible testimony, the existence of a cold-related injury involving the feet while in combat in Korea cannot reasonably be disputed. See 38 U.S.C.A. § 1154(b). Moreover, at least four medical professionals, some of whom are treating medical providers not associated with VA and some of whom are VA physicians, who have determined that the veteran suffers from neuropathic changes and foot pain as a result of his inservice cold injury. A roughly equal number of medical professionals attribute the veteran's signs and symptoms of foot disablement to alternate causes, such as a tarsal tunnel syndrome or residuals of a prior coronary artery bypass grafting procedure, or find that the cold exposure in service did not lead to the onset of variously diagnosed disability of his feet. Still, in view of the fact that there is an approximate balance of positive and negative evidence as to such matter, the benefit of the doubt is afforded the veteran, and in due consideration of that fact and the provisions of 38 U.S.C.A. § 1154(b), service connection for residuals of frostbite of the feet, manifested by neuropathic changes and pain of the feet, is granted. ORDER Service connection for residuals of frostbite of the feet, manifested by neuropathic changes and pain of the feet, is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.