Citation Nr: 1120182 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 07-21 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for cold injury residuals of the right lower extremity. 2. Entitlement to service connection for cold injury residuals of the left lower extremity. 3. Entitlement to service connection for cold injury residuals of the right upper extremity. 4. Entitlement to service connection for cold injury residuals of the left upper extremity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran had active service from July 1953 to May 1955, including over a year of service in the Republic of Korea. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 decision by the Department of Veterans Affairs (VA) St. Paul, Minnesota Regional Office (RO). The Veteran appeared and testified at a Travel Board hearing held before the undersigned Veterans Law Judge in September 2008. A transcript of the hearing has been associated with the claims folder. This is the fourth time that the Veteran's claim has come before the Board. In November 2008, the Board remanded the Veteran's claim in order that additional private treatment records could be obtained and that the Veteran could undergo a VA examination. After this development was completed, the case returned to the Board in June 2009. The Board denied the Veteran's claims for service connection for residuals of cold injuries. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). The Court approved the parties' Joint Motion for Remand in June 2010. That Joint Motion noted that the Board's November 2008 remand instructed the Appeals Management Center (AMC) to obtain records of the Veteran's treatment from Lakeview Clinic in Norwood, Minnesota. The Veteran, however, later stated that he received treatment not from Lakeview's Norwood location, but instead he sought treatment from the Lakeview location in Waconia. The Joint Motion thus instructed the Board to attempt to obtain records from this location. When the case returned to the Board in October 2010, the Board remanded the claim in accordance with the Joint Motion. Specifically, the Board instructed the AMC to attempt to obtain the records of the Veteran's treatment at Lakeview Clinic in Waconia. The Board further directed that, if such records were obtained, then a VA opinion should be offered as to whether a review of such records would change an earlier finding that the Veteran's current conditions are not related to his active service. For reasons explained more fully below, the Board finds substantial compliance with its previous remand instructions; accordingly, the case may move forward without prejudice to the Veteran. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The more probative medical evidence of record indicates that the Veteran's current bilateral foot conditions are less likely than not related to his active service, including his reported cold exposure. 2. The more probative medical evidence of record indicates that the Veteran's current bilateral hand conditions are less likely than not related to his active service, including his reported cold exposure. CONCLUSIONS OF LAW 1. The criteria for service connection for cold injury residuals of the right lower extremity have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). 2. The criteria for service connection for cold injury residuals of the left lower extremity have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 3. The criteria for service connection for cold injury residuals of the right upper extremity have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for service connection for cold injury residuals of the left upper extremity have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic; continuity is also required where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Certain disabilities are presumed to be service connected if evidence of the disease manifests itself to a compensable degree within one year of the end of the Veteran's service; arthritis is one of the chronic conditions subject to this presumption. 38 C.F.R. §§ 3.307, 3.309(a). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In order to grant a service connection claim, the Board must find medical evidence that the Veteran currently suffers from a disability, medical evidence (or, in certain circumstances, lay evidence) of an in service incurrence or aggravation of that disability, and medical evidence of a nexus between the present disability and the disability claimed in service. Hickson v. West, 12 Vet. App 247, 253 (1999) (citing 38 C.F.R. § 3.303(a)). In this case, the Veteran contends that he was exposed to the cold during his service in the Republic of Korea, and that he currently suffers from residuals of that exposure. For the reasons that follow, however, the Board determines that service connection is not warranted. First, the Board acknowledges that the Veteran currently suffers from disability in his hands and feet. A September 2008 letter from Donald Somers, MD, of the Lakeview Clinic stated that the Veteran currently suffers from a degenerative disease in his toes, and he also suffers from a fungal infection in his toenails. Dr. Somers also stated that the Veteran has skin discoloration and degenerative arthritis in his fingers. The Veteran underwent a VA examination in March 2009. The examiner diagnosed the Veteran as suffering from degenerative joint disease in the metacarpophalangeal (MCP) joints of both big toes, as well as a fungal infection in the great toenails of both feet. The examiner also noted that the Veteran had degenerative joint disease in the MCP joints of the thumbs of both hands, as well as mild degenerative joint disease in the interphalangeal joint in both hands. Next, the Board also concedes that the Veteran was exposed to the cold during his service in Korea. Though the Veteran's service personnel records have not been obtained, the Veteran's DD-214 does reflect that he served in Korea for 16 months. Further, the Veteran spoke of his cold exposure in various letters to the RO and in his September 2008 Travel Board hearing, stating that he served during two winters while stationed in Korea. Finally, the Veteran submitted a picture of himself while in Korea, and snow is visible in that picture. Accordingly, despite the lack of service personnel records, the Board finds ample evidence to conclude that the Veteran was exposed to cold during his active service. That being said, the Veteran's service treatment records (which have been obtained and associated with the claims file) do not show that the Veteran complained of or sought treatment for frostbite or any other cold injuries during his service. In his September 2008 hearing, the Veteran admitted that he did not seek treatment for his cold injuries during his active service. In his September 2008 hearing, the Veteran stated that he remembers his hands being numb during his service, but he did not seek treatment for this numbness. He stated that he was first diagnosed as suffering from residuals of cold injuries in his hands and feet in the 1970s or 1980s, at least 20 years after his active service. The lack of in-service treatment or complaints is not fatal to the Veteran's claim, however, as service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Thus, if the Board finds that the probative medical evidence of record establishes that the Veteran's current foot and hand conditions are related to his exposure to the cold in service, then service connection may still be granted. Here, the Veteran's claim fails because the Board finds that the most probative medical evidence of record indicates that his current foot and hand conditions are less likely than not related to his active service. Again, the Veteran underwent a VA examination in March 2009. The examiner reviewed the Veteran's medical history, including his service treatment records, records of his treatment from Lakeview Clinic (including Dr. Somers' September 2008 letter), and the Veteran's oral history obtained during the examination. The examiner stated that the Veteran, in describing his in-service cold exposure, reported suffering from frostbite, yet did not have significant color changes or episodes of severe pain with thawing. Further, the Veteran did not describe episodes of blistering or the need to have skin debridement. Given these facts, the examiner concluded that if the Veteran did suffer from frostbite during his active service, that frostbite would be characterized as mild, not moderate or severe. The Veteran also reported that he first noted decreased sensation in his feet in 1999, and pain in his feet in 2006. After examining the Veteran, the examiner stated that the Veteran's medical records and patient history supported mild frostbite at best. The examiner presumed for the purposes of his opinion that the Veteran suffered a mild cold injury in both his hands and his feet. The examiner then noted that the Veteran has significant degenerative joint disease throughout his body that presented within the last 10 years. The examiner stated that the degenerative joint disease in the Veteran's hands and feet is consistent with "wear and tear changes" and not with cold injuries. He stated that cold injuries would be more generalized in the distal joints than to the proximal joints. He also stated that neurological symptoms in the Veteran's hands are not related to the Veteran's cold injury, and while the Veteran's fungal infection in his great toe "may be related to cold injury," the timing of the onset of his fungal infection "did not support relatedness of this condition to any cold injury." Thus, the examiner concluded that a review of the Veteran's records does not support the onset of any of the Veteran's conditions occurring while in military service. He added specifically that each of the Veteran's reported conditions are not related to the Veteran's claimed cold injury or to his service in general. Following the Board's October 2010 remand and the receipt of records from the Ridgeview Medical Center, a second VA examiner reviewed this new information and offered an opinion as to the etiology of the Veteran's foot and hand conditions. The examiner stated the medical records show that the Veteran has been symptomatic for degenerative joint disease in multiple joints since 2006. The examiner stated that the Veteran would have been 77 at that time, an age where it is common for people to have multiple arthritis joints. The examiner opined that "there is nothing about his presentation of arthritic joint changes that would specifically [point] towards cold weather injury as being the etiology." The examiner added that arthritic changes due to cold weather injuries are more likely to occur in the distal joints than in the proximal ones. The examiner concluded that the arthritic changes in the Veteran are part of the normal aging process and are similar to those seen in other individuals of his age. The examiner also concluded that the fungal infection in the Veteran's feet is not related to his cold weather exposure, as there is no evidence that his infection was persistent since the time of his reported cold weather injury. The opinions of the VA examiner are contrasted with those of Dr. Somers. In a September 2008 letter, Dr. Somers summarized the conditions in the Veteran's feet and hands from which he was currently suffering, including degenerative disease of the toes, a fungal infection in the toes, cold sensitivity in the feet, skin discoloration in the fingers, and degenerative arthritis of the fingers. Dr. Somers stated that he believed that these conditions are "as likely as not related directly to his extreme cold exposure during the Korean War." He added that the marked skin discoloration of the Veteran's hands and the degenerative arthritis of his fingers are directly related to this cold exposure. Dr. Somers also stated that the Veteran's degenerative disease of the feet is aggravated by his cold exposure, but not caused by it. He did, however, believe that the Veteran's sensitivity to cold in his feet was directly caused by his extreme cold exposure. When there is an apparent difference of medical opinion, it is the Board's responsibility to weigh the credibility of the evidence of record. Hayes v. Brown, 5 Vet. App. 60, 69 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992)). In assessing medical evidence, whether a physician provides a basis for his medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-89 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993). 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In this case, the Board assigns a greater weight to the findings of the VA examiners. In reviewing their opinions, it is clear that they considered a more complete record than that considered by Dr. Somers. The examiners each listed the evidence that they reviewed, including Dr. Somers' letter, records of the Veteran's treatment at the Lakewood Clinic, records of the Veteran's treatment at Ridgeview Medical Center, the Veteran's service treatment records, and a history of the Veteran's injuries obtained from the Veteran himself. Though Dr. Somers stated that he has treated the Veteran since 1993, he did not state whether he reviewed any other medical records or other aspects of the Veteran's history in forming his opinion. The examiner from the Veteran's March 2009 examination also formed his opinion after an exhaustive examination of the Veteran, the report of which accompanied his opinion. Dr. Somers' letter is much shorter, and though it states that he had treated the Veteran for the preceding 15 years, there is no showing of what kind of examinations he performed on the Veteran prior to forming his opinion. Finally, and perhaps most importantly, the VA examiners' opinions are both very detailed, providing specific reasons for their conclusions that the Veteran's conditions are not related to his in-service cold exposure. Both examiners stated that the Veteran's conditions are not consistent with the kinds of arthritis normally associated with cold injuries. Given these disparities, the Board finds that the opinions of the VA examiners have a greater probative value than the opinion of Dr. Somers. Accordingly, the Board finds that the Veteran's current foot and hand conditions are less likely than not related to his active service. The Veteran has consistently advanced his own opinion that his foot and hand disabilities are causally related to his cold exposure. The Veteran is not competent to offer such an opinion, however. The Board and the VA examiners have both accepted the Veteran's statements regarding his in-service cold exposure and the symptoms that he contends he suffered as a result of that exposure; the Veteran is competent to offer testimony as to these matters, but he is not competent to testify as to the etiology of his claimed disability. To the extent that the Veteran speaks to the diagnosis and causation of his current foot and hand disabilities, the Board finds that he is not competent to do so and will not consider his testimony for these purposes. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In summary, the Board finds that the most probative evidence of record indicates that the Veteran's foot and hand disabilities are not related to his in-service cold exposure. Accordingly, the Board concludes that the criteria for service connection for each of these conditions have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2006 - prior to the initial RO decision in this matter - that addressed the notice elements. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. This notice informed the Veteran of all of the elements of how service connection is established, including how VA assigns disability ratings and how an effective date is established. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and records of his post-service private medical treatment. The Veteran was afforded a VA compensation and pension examination germane to his claims now on appeal. As noted above, this case has been before the Board three times before. This case was also the subject of a June 2010 Joint Remand. The Board recognizes that where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate. Winslow v. Brown, 8 Vet. App. 469, 472 (1996). Further, a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, the Board finds that both the directives of the June 2010 Joint Motion and the October 2010 Board remand have been accomplished. Again, the June 2010 Joint Motion instructed the Board to obtain records from the Veteran's treatment at Lakeview Clinic in Waconia. The Board's October 2010 remand instructed the same, and it additionally asked the AMC to obtain an opinion as to whether these obtained records changed the examiner's opinion. As explained above, records from both the Lakeview Clinic in Waconia and the Ridgeview Medical Center in Waconia were obtained and associated with the claims file. An additional VA opinion was obtained in March 2011. Thus, all of the remand directives have been accomplished. The Board thus finds there was substantial compliance with the June 2010 Joint Motion and the Board's October 2008 remand instructions. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance). As the requested development has been completed, the case may proceed without prejudice to the Veteran. The Board notes that the evidence already of record is adequate to allow resolution of the appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Service connection for cold injury residuals of the right lower extremity is denied. Service connection for cold injury residuals of the left lower extremity is denied. Service connection for cold injury residuals of the right upper extremity is denied. Service connection for cold injury residuals of the left upper extremity is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs