Citation Nr: 1300537 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 04-22 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for residuals of frozen feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. The Veteran served on active duty from October 1952 to November 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2003 of a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for residuals of frozen feet. In August 2004 the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. In June 2005, the Board, in pertinent part, remanded the issue of entitlement to service connection for residuals of frozen feet, for further development. In March 2006, the Board, in pertinent part, remanded the issue of entitlement to service connection for residuals of frozen feet to schedule the Veteran for a Travel Board hearing. In September 2006, the Veteran appeared at another Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. In a July 2007 decision, the Board, in pertinent part, denied the Veteran's claim for entitlement to service connection for residuals of frozen feet. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2008, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board's decision be vacated and remanded as to the issue of entitlement to service connection for residuals of frozen feet. A January 2009 Court Order granted the motion. In June 2007, the Board remanded the issue of entitlement to service connection for residuals of frozen feet for further development. In a subsequent November 2010 decision, the Board again denied the Veteran's claim for entitlement to service connection for residuals of frozen feet. The Veteran then appealed to the Board November 2010 decision to the Court. In an August 2011 Memorandum Decision, the Court vacated and remanded the Board's November 2010 decision. In April 2012, the Board remanded the issue of entitlement to service connection for residuals of frozen feet for further development. FINDING OF FACT The Veteran does not currently have residuals of frozen feet. CONCLUSION OF LAW The criteria for service connection for residuals of frozen feet have not been met. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A December 2003 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A March 2006 letter notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated, most recently in an October 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's available service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted in August 2005 and July 2010. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Pursuant to the Court's August 2011 Memorandum Decision, the Board remanded this case in April 2012 to schedule the Veteran for a VA cold injury protocol examination. The examiner was requested to opine as to whether it was at least as likely as not (a 50 percent or greater probability) that any of the Veteran's diagnosed disorders (including osteoarthritis of both feet, diabetes mellitus, peripheral neuropathy, chronic tinea pedis, nocturnal pain, paresthesias, numbness of the legs and feet, pain in the feet, and a fungal infection) were cold injury residuals. For each identified cold injury residual, the examiner was requested to opine whether it was at least as likely as not that any such residual was related to any incident of the Veteran's military service. In the April 2012 remand, the Board specifically informed the examiner that the Veteran's credible account of exposure to cold weather during his military service should be accepted. The examiner was further requested to consider and address the Veteran's contentions regarding foot symptoms (i.e., "lost feeling" in his feet and his feet falling "asleep"), as well as the treatment (aspirin, foot soaks and salves) that he alleged he experienced in the service. In April 2012, the Veteran was sent notice, at his last address of record, that a VA cold injury protocol examination had been requested. The Veteran was notified that failure to appear at the examination without good cause may cause his claim to be denied. There is a notation in the record that the Veteran failed to report for the VA cold injury protocol examination in June 2012. In June 2012, the Veteran was notified that he had failed to appear for the VA cold injury protocol examination. He was specifically notified, again, that his failure to appear at the examination without good cause may cause his claim to be denied. The Veteran was requested to contact the RO so that he could be scheduled for an examination. The Veteran did not respond. As the Veteran, without good cause, failed to report for the scheduled VA cold injury protocol examination in June 2012, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. See 38 C.F.R. § 3.655; See also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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) (2012). Where service medical records are not available, the Board's obligation to explain its findings and conclusions and to consider the benefit-of-the-doubt rule is heightened. Pruitt v. Derwinski, 2 Vet. App. 83 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Veteran maintains that he suffered cold weather injuries to his feet when he was in Korea. He states that he went on patrol the first night on the front line in rice paddies and that he had water above his head. He also reports that he was exposed to cold weather during basic training in Kansas. He indicates that he had all kinds of problems with his feet, but that it was too inconvenient for him to go to a hospital, and that he only was able to get aspirin from the medic. He states that he was not specifically treated for frozen feet during service. The Veteran reports that when he got back to the United States, he sought treatment and was given aspirin, as well as something to soak his feet in, but that he was not diagnosed with frozen feet during service. He indicates that over the years, he has tried to avoid anything that would aggravate his feet and that he has stayed away from cold weather. He essentially reports that he suffered from frozen feet during service and that he has had residuals of frozen feet since service. The Veteran's service treatment records are essentially unavailable and were apparently destroyed in the 1973 fire at the National Personnel Records Center (NPRC). An October 1956 separation examination report included notations that the Veteran's feet, lower extremities, and vascular system were all normal. The first post-service evidence of any possible residuals of frozen feet, is in August 2005, decades after the Veteran's period of service. Post-service private and VA treatment records do not show treatment for any diagnosed residuals of frozen feet. A November 2001 VA treatment report noted that the Veteran was seen for a follow-up appointment following knee surgery one and a half months earlier. As to an examination of the Veteran's extremities, the examiner reported that the Veteran's feet were within normal limits. A September 2002 VA treatment entry indicated that the Veteran had complaints including left lower extremity pain radiating to the left buttocks, as well as radiating down to his left foot on the lateral aspect. The impression included radicular low back pain, left lower extremity. An April 2003 VA treatment report noted that the Veteran complained of pain in his back, as well as in his left leg and hip. An examination of the Veteran's extremities indicated that there was no clubbing, cyanosis, or edema. Pedal pulses were 2+ bilaterally. The assessment included hypertension; diabetes mellitus, Type II; and degenerative disc disease (of that lumbar spine). A June 2003 treatment report from the Southeast Alabama Medical Center related that the Veteran had complaints including pain in his left foot. A diagnosis was not provided. An August 2005 VA foot examination report noted the Veteran's claims file was reviewed. The Veteran reported that he suffered frozen feet during his service in Korea in 1953. He stated that he "lost feeling" in his feet during service because of frostbite and that his feet were treated with a salve. It was noted that the Veteran did not identify any changes in his military duties because of his feet or any specific temperatures he was exposed to. The Veteran reported that he believed that the winters were "too cold" in Korea. He stated that he had pain in both of his feet and that his feet felt "asleep." He indicated that he had diabetes and that he had been told that he had diabetic neuropathy. The Veteran stated that he did not take any medication for diabetic neuropathy. He reported that he had a recent flare-up of pain in his right foot and that he underwent an injection in his right heel. He indicated that he had not had surgery on either foot. The Veteran maintained that he recently had a podiatry evaluation and that he was told that he had a right heel spur. As to diagnoses, the examiner indicated that the Veteran had moderate chronic strain in both of his feet that did not require medication. It was noted that the Veteran had a recent flare-up in his right heel that was treated with an injection and that no additional limitations due to flare-ups were indentified. The examiner stated that additional limitation with repetitive motion was not assessed at the examination because the Veteran would not stand or walk without shoes. The examiner commented that it was as likely as not that some of the Veteran's symptoms in both of his feet were due to diabetic neuropathy. The examiner stated that the Veteran's complaint of his feet falling "asleep" was at least as likely as not due to diabetic neuropathy. The examiner further indicated that no evidence of service-connection for the Veteran's chronic strain in both feet was identified. The examiner also stated that no cold injury residuals were identified. The examiner commented that it was not at least as likely as not that the Veteran had any significant cold injury during his military service. A July 2010 VA cold injury protocol examination report noted that the Veteran's claims file was reviewed. The examiner reported that the Veteran arrived at the examination in a wheelchair and that he was accompanied by his son. The examiner stated that both the Veteran and his son were poor historians. The Veteran indicated that he had been seen at various VA facilities. He reported that he was exposed to severe cold and snowy weather in 1952 while he was in basic training during service. He stated that they had "no covers" in the cold weather. The Veteran indicated that his knees and his feet were affected and that he had suffered longstanding knee problems. It was noted that he reported that he had undergone knee surgeries. The Veteran denied that he was treated for cold injuries in the military service. He stated that his present symptoms were pain in the knees, especially the left knee. He maintained that he had pain from the left foot and knee that would radiate all the way up to the back of his head. The Veteran reported that the pain was not as severe on his right side. He also stated that he would drop things. The examiner discussed the Veteran's medical history in detail. The diagnoses included status post bilateral knee replacement surgeries performed in May 1994, with revision of a left total knee replacement in September 2001; chronic essential hypertension, with the Veteran noted to have a longstanding history of essential hypertension; status post cerebrovascular accident/transient ischemic attacks; diabetes mellitus, not on any medications and controlled with diet; mild diabetic neuropathy; bilateral osteoarthritis of the feet and bilateral calcaneal spurs, with moderate functional loss due to pain; and anemia and renal deficiency/renal disease. The examiner reported that the Veteran's medical records noted that he had a longstanding problem with his knees due to bilateral degenerative disease and that he had total knee replacement surgeries, bilaterally, in May 1994. The examiner stated that the Veteran also had arthritis in several other joints, including his left hip, as well as bilateral osteoarthritis of the feet with bilateral calcaneal spurs. The examiner indicated that the Veteran had longstanding, poorly controlled, hypertension. It was noted that the Veteran had diabetes mellitus that was documented since at least 2003, but did not require medications and was controlled by diet. The examiner reported that the Veteran gave mostly a history of pain in the left knee and left side, more than paresthesias in his legs and feet. The examiner stated that the Veteran's symptoms were secondary to a combination of his diffuse arthritis, his residuals of a cerebrovascular accident, and his mild diabetic symptoms. The examiner reported that there was no documentation from the Veteran's medical records about any cold injury or frostbite or any treatment for any such condition. The examiner maintained that all along in the past, the Veteran's complaints were related to his bilateral knees which necessitated knee replacement surgeries for bilateral degenerative joint disease. The examiner commented that it was his opinion that the Veteran's current symptoms were not related to any cold injury residuals from his active military service. Pursuant to the Court's August 2011 Memorandum Decision, this claim was remanded in April 2012 to schedule the Veteran for a VA cold injury protocol examination. The examiner was requested to opine as to whether it was at least as likely as not that any of the Veteran's diagnosed disorders (including osteoarthritis of both feet, diabetes mellitus, peripheral neuropathy, chronic tinea pedis, nocturnal pain, paresthesias, numbness of the legs and feet, pain in the feet, and a fungal infection) were cold injury residuals. For each identified cold injury residual, the examiner was requested to opine whether it was at least as likely as not that any such residual was related to any incident of the Veteran's military service. In the April 2012 remand, the Board specifically informed the examiner that the Veteran's credible account of exposure to cold weather during his military service should be accepted. The examiner was further requested to consider and address the Veteran's contentions regarding foot symptoms (i.e., "lost feeling" in his feet and his feet falling "asleep"), as well as the treatment (aspirin, foot soaks and salves) that he alleged he experienced in the service. The record indicates that the Veteran failed to report for the examination scheduled in June 2012. The duty to assist is not a "one-way street." If a claimant wishes help, he "cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, pursuant to 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be decided based on the evidence of record. Because the Veteran failed to undergo the scheduled VA cold injury protocol examination, the Board must proceed to adjudicate the claim based on the evidence of record. The record does not contain any medical diagnosis of residuals of frozen feet, nor does it contain any medical evidence indicating that any of the many medical problems the Veteran has experienced since service can be attributed to residuals of frozen feet. The VA examiner, pursuant to the August 2005 VA feet examination report, after a review of the Veteran's claims file, specifically stated that no cold injury residuals were identified. The examiner opined that it was not at least as likely as not that the Veteran had any significant cold injury during his military service. Additionally, the VA examiner, pursuant to the July 2010 VA cold injury protocol examination, after a review of the claims file, specifically stated that there was no documentation from the Veteran's medical records about any cold injury or frostbite or any treatment for any such condition. The examiner opined that the Veteran's current symptoms were not related to any cold injury residuals from his active military service. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes). Here, the evidence indicates no presently diagnosed residuals of frozen feet, and service connection for such is not warranted. The Veteran has alleged that his claimed residuals of frozen feet had their onset during his period of service. The Board accepts that the Veteran's reports of exposure to cold weather during service are credible. The Veteran is competent to report symptoms that he thought were residuals of frozen feet (or cold weather injuries) during service or after service; however, as a lay person, he does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of a disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a veteran's lay belief that his schizophrenia aggravated his diabetes and hypertension was not of sufficient weight to trigger the Secretary's duty to seek a medical opinion on the issue). Thus, the Veteran's lay assertions as to diagnosis and etiology are not competent or sufficient. Jandreau. Despite the fact that the Board finds the Veteran's reports of exposure to cold weather during service to be credible, there is simply no in-service or post-service diagnosis of residuals of frozen feet. The Court's August 2011 Memorandum Decision indicated that the Board must make a finding that the Veteran did indeed suffer a cold weather injury in service. The Court also noted that the Veteran argued that the Board failed to explain the adequacy of the examinations in light of evidence of arthritis, diabetes mellitus, peripheral neuropathy, chronic tinea pedis, nocturnal pain, paresthesias, numbness of the legs and feet, pain in the feet, and fungal infections, and that the Board should best address those arguments in the first instance on remand. The Board accepts that the Veteran was exposed to cold weather during service and the Board also accepts that he complained of numbness in his feet. That said, the Board, like the Veteran, is not competent to conclude that the arthritis, diabetes mellitus, peripheral neuropathy, chronic tinea pedis, nocturnal pain, paresthesias, numbness of the legs and feet, pain in the feet, and fungal infections claimed by the Veteran are residuals of a cold weather injury. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). There is no diagnosis of frozen feet or any residuals of frozen feet of record; in-service and post-service. Two VA examiners have specifically concluded that the Veteran has no residuals of frozen feet, to include arthritis, diabetes mellitus, peripheral neuropathy, chronic tinea pedis, nocturnal pain, paresthesias, numbness of the legs and feet, pain in the feet, and fungal infections as set forth in the Memorandum Decision. Further, the VA examiner, pursuant to the August 2005 VA foot examination, specifically concluded that that it was as likely as not that some of the Veteran's symptoms in both of his feet were due to diabetic neuropathy. The examiner stated that the Veteran's complaint of his feet falling "asleep" was at least as likely as not due to diabetic neuropathy. The examiner further indicated that no evidence of service-connection for the Veteran's chronic strain in both feet was identified. The examiner at the July 2010 VA cold injury protocol examination concluded that the Veteran's symptoms were secondary to a combination of his diffuse arthritis, his residuals of a cerebrovascular accident, and his mild diabetic symptoms, and that his current symptoms were not related to any cold injury residuals from his active military service. There is simply no evidence that the Veteran presently has any current residuals of frozen feet. The preponderance of the evidence is against the claim for entitlement to service connection for residuals of frozen feet; there is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for residuals of frozen feet is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs