Citation Nr: 1131925 Decision Date: 08/30/11 Archive Date: 09/07/11 DOCKET NO. 08-33 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for the residuals of frostbite, to include poor circulation, skin conditions, and injury to the knees, arms, hips, and elbows. WITNESSES AT HEARING ON APPEAL Appellant, spouse, friend ATTORNEY FOR THE BOARD R. Erdheim, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1950 to November 1952. This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the residuals of a cold injury. In May 2010, the Board remanded the claim for additional development. 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 Veteran was exposed to cold weather during service and currently has residuals of frostbite injuries as a result of that exposure, specifically, peripheral neuropathy of the bilateral lower extremities and benign skin cancer of the left hand and at the left temple, with residual scars. 2. The Veteran's arthritis of the knees, arms, hips, and elbows, and his large vessel peripheral vascular disease, claimed as poor circulation, were not caused by cold weather exposure in service, and are otherwise not related to his active service. CONCLUSIONS OF LAW 1. Residuals of cold injury, specifically, peripheral neuropathy of the bilateral lower extremities and benign skin cancer of the left hand and at the left temple, with residual scars, were incurred in active service. 38 U.S.C.A. §§ 1110 , 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304 (2010). 2. The Veteran's arthritis of the knees, arms, hips, and elbows, and his large vessel peripheral vascular disease, claimed as poor circulation, were not incurred in active service. 38 U.S.C.A. §§ 1110 , 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2010). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection for some disorders, including peripheral neuropathy and arthritis, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). The Veteran contends that he suffered extreme cold exposure while on patrol at the boarder of Germany and Czechoslovakia. He contends that the cold exposure caused his current arthritis of the knees, arms, hips, and elbows, as well as skin conditions and poor circulation. His service personnel records show that he served in the European theater during World War II. Therefore, the Board finds that the Veteran's cold weather exposure and injury during service is conceded as being consistent with the circumstances of his service. 38 U.S.C.A. § 1154(b) (West 2002). The Veteran's service records are presumed to have been destroyed by a fire in 1973. When a veteran's records have been destroyed, VA has an obligation to search for alternative records that might support the veteran's case. Cuevas v. Principi, 3 Vet. App. 542 (1992). In November 2006, the National Personnel Records Center advised that the Veteran's service records were unavailable and could not be reconstructed. The Veteran was advised of the loss of his records in November 2006 and in May 2007 and was asked to provide any additional service documents that might aid in an additional search for his records, and the Veteran accordingly submitted a statement from a friend who he had written letters to while in service. Pertinent post-service private treatment records reflect that in May 2000, the Veteran was treated for contact dermatitis at the thigh area. In May 2002, the Veteran was diagnosed with erythema nodosum related to pulmonary sarcoidosis. The erythema nodosum affected his arms, elbows, abdomen, legs, and lower back. He was treated with steroids and continued to suffer from the condition intermittently. He had a history of deep venous thrombosis which he treated with an anti-coagulant. In November 2003, he had a basal cell carcinoma, nodular type, removed from his left check. In June 2004, he was treated for cellulitis of the right thumb. In August 2005, it was noted that the Veteran had been diagnosed with diabetes secondary to Prenisone-use since at least 2002. He also had osteoporosis secondary to chronic steroid use. On November 2007 VA examination, the Veteran reported that his in-service cold exposure affected his hands and feet. He reported that he was treated for hypothermia twice while in service. His hands and feet were now sensitive to cold and would become painful on exposure. He had a history of Reynaud's symptoms of the feet. He believed that his previous skin cancers with scars, skin thinning, and joint pain with stiffness, were related to in-service cold exposure. He had recurrent fungal infections, changes in skin color, edema of the affected areas, and sleep disturbance due to pain. He had abnormal skin sensation, breakdown of the frostbite scars, disturbances of nail growth, and a feeling of being cold in hot weather. He had had skin cancer on his hands removed twice, in 2005 and in 2006. He had recently had skin cancer removed from his face. He had previously had a "lesion" removed from his left Achilles tendon. Physical examination showed dark discoloration of the hands and feet, but did not show the presence of scars. The extremities showed atrophic skin changes with absence of hair, but there was no evidence of persistent coldness, ischemic limb pain at rest, gangrene, deep ischemic ulcer, or atrophic skin changes. Examination of the peripheral nerves and musculoskeletal examination were normal. X-ray examination of the hands and feet showed degenerative changes. The diagnosis was squeal of pain due to frostbite, bilateral upper and lower extremities. The residual sequlae included Reynaud-like vascular problems not seen on examination, atrophic skin changes, chronic fungal infections, hair loss, cancer at the frostbite scar, and osteoarthritis-like involvement of the fingers and toes. The Veteran reported that he did not have peripheral neuropathy. On October 2010 VA examination, the Veteran reported that while in service, he was often placed on guard duty for up to five to six hours without heat. He had slept in a tent without heat. He had suffered from chronic pain and sensitivity in his feet since service, but could not recall if he had experienced any numbness of the hands or feet. He had a chronic deformity of his great toenails. He had a history of skin cancer of the dorsum of the left hand in 2005 and in 2006, and at the left temple, treated surgically. The type of skin cancer was unknown. He had intermittent hyperhidrosis of the hands. The examiner noted that the Veteran carried a diagnosis of mild to moderate arterial insufficiency. The Veteran and his spouse denied any specific arthritis of the bilateral wrists, elbows, knees, ankles, or hips. He had had pain in the left hip following hip fracture and surgical correction. Physical examination showed decreased hair pattern over the dorsum of the feet, with onychomycoses of the toenails. There was moderate to severe coldness of the feet to the touch, and severe rubor over both the feet and ankles. There was a surgical scar at the left temple and over the dorsum of the left hand. Neurological examination showed decreased sensation to light touch over the bilateral feet in a stocking distribution, but was normal in the upper extremities. After physically examining the Veteran, the examiner determined that the Veteran's report of chronic bilateral foot pain following the cold exposure, and predating his diagnosis of diabetes mellitus, made it likely that he suffered from peripheral neuropathy related to the in-service cold exposure. The examiner explained that the Veteran's symptoms pre-dated his other risk factors for peripheral neuropathy, diabetes mellitus, renal insufficiency, methotrexate therapy, and sarcoid-like disease, and that it was therefore as likely as not that his foot pain and peripheral neuropathy were cold-related residuals. Following physical examination of the Veteran, the examiner determined that the Veteran's residuals of cold injury exposure included cold sensitivity of the bilateral hands and feet, onychomycoses of the bilateral first toenails, dermatophytosis, osteoarthritis of the hands and first metatarsophalangeal joints, skin cancer of the left hand and left temple with residuals scar, hyperhydrosis of the feet, and Reynaud's phenomena of the feet. The examiner stated that the arthritis of the ankles shown on X-ray examination would not likely be related to cold exposure because the larger joints of the body would not be affected by the Veteran's described extent of cold exposure, but instead the joints affected would only be the distal joints such as the fingers and toes. There was no other joint pathology reported that would be considered to be secondary to cold exposure. Finally, the Veteran's large vessel vascular disease was not likely related to the cold injury, though the decreased capillary refill of fingers and toes was likely related to a cold injury. The examiner noted that he had experience examining more than 600 former prisoners of war for cold-related injuries. An evaluation of the probative value of medical evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, in placing greater probative weight on the October 2010 VA examination, the Board finds that it is at least as likely as not that the Veteran's peripheral neuropathy of the bilateral lower extremities is related to the in-service cold injury. Although the September 2007 VA examiner did not find evidence of a diagnosis of peripheral neuropathy, it appears that that conclusion was based upon the Veteran's report of his current diagnoses, rather than on a thorough neurological examination. By contrast, the October 2010 VA examiner determined that the Veteran's described longstanding symptoms of pain and sensitivity in his feet, along with findings of decreased sensation on objective examination, indeed demonstrated the presence of peripheral neuropathy. Further, the neuropathy comported with known residuals of a cold injury, and pre-dated his diagnosis of diabetes mellitus, and thus it was as likely as not that the Veteran's peripheral neuropathy was due to his service. The Board also finds it to be significant that the October 2010 VA examiner had extensive experience in diagnosing cold injuries in prisoner-of-war Veterans in making his determination. Accordingly, due to the presence of a current diagnosis and a competent and probative medical nexus of record, service connection for peripheral neuropathy of the bilateral lower extremities secondary to a cold injury, is warranted. In that regard, the Board notes that although in April 2011, the RO granted service connection for right and left foot disabilities secondary to a cold injury, the presence of peripheral neuropathy may be rated separately under the applicable rating criteria. See 38 C.F.R. § 4.112, Diagnostic Code 7122, Note (1). Likewise, the Board finds that the Veteran's scar residuals located at the left temple and the dorsum of the left wrist also warrant service connection. In that regard, both the September 2007 and the October 2010 VA examiners diagnosed the Veteran as having cancer scars secondary to frostbite and pointed to those two areas of the Veteran's body. Significantly, there is no indication that the Veteran's cancer scars have not been related to any other etiology. Accordingly, because the overwhelming medical evidence supports the award of service connection for scar residuals located at the left temple and the dorsum of the left wrist secondary to a cold injury, and absent any medical evidence or opinion to the contrary, service connection is granted. In this case, too, scars, as a complication of a cold injury, may be rated separately. See 38 C.F.R. § 4.112, Diagnostic Code 7122, Note (1). However, with regard to the Veteran's claim for service connection for cold injury residuals of the knees, arms, hips, elbows, and poor circulation, the Board finds that the preponderance of the evidence is against the claim. For one, although the Veteran has submitted statements contending that he suffers from joint pain at the knees, arms, hips, and elbows, he denied experiencing those symptoms on both the September 2007 and on the October 2010 VA examinations. The Veteran's conflicting and inconsistent reports of symptoms lessens the probative weight of his contentions in that case. Further, there is no evidence of a current diagnosis of a disability of the knees, arms, hips, or elbows that would be related to a cold injury. To that extent, the available X-ray examinations of record only document arthritis of the hands and feet joints, and the private treatment records, while referencing the presence of osteoarthritis, link those conditions instead to the Veteran's chronic steroid use. Absent evidence of a current disability, service connection for cold residuals of the knees, arms, hips, and elbows must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). With regard to the Veteran's claim that his poor circulation is related to the in-service cold injury, the Board finds that those symptoms are already accounted for in his current ratings for cold injuries of the hands and feet. Significantly, arthralgia, cold sensitivity, and numbness are factors that were considered by the RO when granting the Veteran a 20 percent rating for his right and left hand disabilities, and a 30 percent rating for his right and left foot disabilities. Therefore, to separately compensate the Veteran for those symptoms would constitute pyramiding, which is prohibited by VA regulations. 38 C.F.R. § 4.14. Such is also the case for the Veteran's other diagnosed skin conditions, included fungal toenails, onychomosis, dermatophytosis, and hyperhydrosis, as well as the diagnosed arthritis of the hands and feet and Reynaud's phenomena in the hands and feet. Finally, neither VA examiner found that the Veteran's large vessel peripheral vascular disease was in anyway related to the in-service cold residuals, and the October 2010 VA examiner affirmatively stated that the condition was not a known cold injury residual. Accordingly, as explained above, service connection for the residuals of a cold injury, to include arthritis of the knees, arms, hips, and elbows, and his large vessel peripheral vascular disease, claimed as poor circulation, is not warranted. Nor is there evidence that those conditions are directly related to the Veteran's military service in a manner other than as a cold injury. Significantly, the Veteran has not contended that his symptoms are related to any other event or injury of his service. In this case, the Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss the symptoms of his current headaches. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). While the Veteran is competent to describe the symptoms of joint pain and poor circulation, the Board accords his statements regarding the etiology of his claimed cold injury residuals little probative value as he is not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Moreover, the Veteran has only offered conclusory statements regarding the relationship between his symptoms and his military service. A medical professional has not made such a conclusion. As the Veteran's current peripheral neuropathy of the bilateral lower extremities and residual scars at the dorsum of the left hand and left forehead have been determined to be consistent with cold injuries suffered in service, the Board finds that service connection for residuals of cold injuries is warranted. In this case, service incurrence has been shown by satisfactory lay evidence, consistent with the circumstances, conditions, and hardships of the Veteran's service, along with competent and probative medical evidence. However, because the preponderance of the evidence is against the claim for service connection for cold injury residuals of the knees, arms, hips, elbows, and of poor circulation, those claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103 , 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in September 2006, November 2006, and May 2007; rating decisions in March 2008 and in April 2011; and a statement of the case in October 2008. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decision. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006), Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the April 2011 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for the residuals of frostbite injuries as a result of cold exposure, specifically, peripheral neuropathy of the bilateral lower extremities and benign skin cancer of the left hand and at the left temple, with residual scars, is granted. Service connection for the residuals of frostbite injuries as a result of cold exposure, specifically arthritis of the knees, arms, hips, and elbows, and his large vessel peripheral vascular disease, claimed as poor circulation, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs