Citation Nr: 1301592 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 12-11 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a below the knee amputation of the right leg. 2. Entitlement to service connection for residuals of a cold injury. 3. Entitlement to service connection for shell fragment wounds of the lower extremities. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from October 1946 to June 1947 and from October 1950 to October 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In October 2012, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Since the statement of the case (SOC), additional evidence has been received, without a waiver, in the form of VA independent study course pertaining to cold injuries. Normally, absent a waiver from the Veteran, a remand is necessary when evidence is received by the Board that has not been considered by the RO. Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Here, however, as the Board is using this additional evidence to award service connection for the issues adjudicated herein, the Veteran is not prejudiced by the Board's consideration of this evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for shell fragment wounds of the lower extremities being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1 The Veteran had a below the knee amputation of the right leg that is as likely as not related to disorders due to a cold injury incurred during his active duty. 2. The Veteran has residuals of a cold injury that are as likely as not related to his active duty. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, he had a below the knee amputation of the right leg that is related to disorders due to a cold injury incurred in his military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. Resolving reasonable doubt in favor of the Veteran, he has residuals of a cold injury that was incurred in his military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) On November 9, 2000, the President signed into law the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2012)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. The Board has considered the legislation regarding VA's duty to notify and to assist claimants but finds that, given the favorable action taken herein with regard to the issues of service connection for a below the knee amputation of the right leg and residuals of a cold injury, no further discussion of these VCAA requirements is required with respect to these claims. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 1. Below the Knee Amputation of the Right Leg The Veteran contends that he had to have a below the knee amputation of the right leg as a result of in-service frostbite. See, e.g., October 2010 claim; August 2011 notice of disagreement. A review of the Veteran's service treatment records (STRs) shows no treatment for, or diagnosis of, any cold injury, to include frostbite. There is no indication that he incurred any injury or disease to his right leg. His personnel records confirm that he was stationed in Korea from October 1951 to September 1952. According to post-service treatment records, the Veteran had a below the knee amputation of the right leg in September 2009. Records at that time show diagnoses of distal arterial occlusive disease involving the feet and toes of the right leg; right diabetic foot ulcers; osteomyelitis; and diabetic foot infection. One of the treatment records dated in September 2009 indicates that the Veteran's right diabetic foot ulcer was likely associated with underlying osteomyelitis involving the calcaneus. It was opined to be chronic and more than likely extended well beyond the six week history that the Veteran had provided. None of the pertinent treatment records related the Veteran's right leg diagnoses to in-service cold injuries, nor did the Veteran report such history to his treatment providers. The Veteran was afforded a VA examination in May 2011. He reported having a below the knee amputation secondary to an infected ulcer after active duty. After examining the Veteran and reviewing the claims file, the examiner opined that the Veteran's amputation was likely a complication of diabetes mellitus and peripheral vascular disease. The examiner commented that the Veteran had significant risk factors for amputation to include coronary artery disease, peripheral vascular disease, diabetes mellitus and hypertension. A fee-based medical opinion was obtained in March 2012. After reviewing the pertinent records, the examiner opined that the Veteran's amputation was less likely than not incurred in or caused by the Veteran's service. The examiner opined that the Veteran's amputation was due to peripheral vascular disease and diabetes mellitus. Frostbite was not a cause of peripheral vascular disease. Severe frostbite could lead to amputation; however, the Veteran did not have a medical diagnosis or treatment for frostbite. At the October 2012 hearing, the Veteran testified that it was very cold when he served in Korea. October 2012 Hearing Transcript (T.) at 4. He testified that in-service symptoms including numbness and tingling and that such symptoms continued after service. Id. at 5. He also testified that his feet were discolored in service. Id. at 10. His wife testified that they had been married since 1956 and that he had had problems with his legs at that time that continued to the present. Id. at 14-15. The Veteran's representative submitted a VA independent study course discussing the diagnosis and management of long term sequelae of cold injuries. According to this study, cold injuries could cause osteomyelitis and ulcerations. Delayed damage to bones and joints could be caused. Based on a review of the evidence, the Board concludes that service connection for a below the knee amputation of the right leg is warranted. Initially, when affording the Veteran the benefit-of-the-doubt, the Board concludes that the Veteran did incur in-service cold injuries to his lower extremities. The Veteran testified regarding the incurrence of such injuries. Additionally, his personnel records confirm that he was stationed in Korea during the winter of 1951-1952. He is competent to report having coldness and numbness in service when stationed in Korea. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the Veteran to be credible. Thus, the Board concludes that the Veteran did incur an in-service injury to his right lower extremity. Post-service records clearly show that the Veteran had a below the knee amputation of his right leg in 2009. The Board also finds that after reviewing all of the pertinent evidence of record, in addition to affording the Veteran the benefit-of-the-doubt, a nexus between the disorders that led to the amputation and his in-service cold injury exists. In this case, the Veteran and his wife both testified that the Veteran had problems with right lower extremity long before the amputation in 2009. The Veteran competently and credibly testified having numbness and other symptoms since his service. His wife confirmed that he had leg problems as far back as 1956 when they were married. There is nothing in the record to suggest that she is not credible. The VA study submitted by the representative shows that cold injuries could cause delayed damage to bones and joints and that disabilities associated with such injuries included ulcers and osteomyelitis. As discussed above, pertinent diagnoses that led to the below the knee amputation included a right foot ulcer as well as osteomyelitis. Thus, the Veteran had an in-service cold injury and was diagnosed with disorders associated with cold injuries post-service, which led to his below the knee amputation. The Board finds that when affording the Veteran the benefit-of-the-doubt, the evidence supports a finding of a nexus between his in-service cold injury and the disorders that resulted in a below the knee amputation of the right leg. In this case, the Board acknowledges that no medical professional has provided any opinion directly relating the Veteran's below the knee amputation to a disorder related to his military service. As discussed above, the only medical opinions of record, that of the May 2011 VA examiner and the March 2012 fee-based examiner, indicate that the Veteran's below the knee amputation was due to disorders caused by his diabetes mellitus and peripheral vascular disease, which are not related to his military service. However, the Board finds that these opinions lack probative value. Neither opinion addresses the Veteran's competent and credible reports of having a continuity of symptomatology since service. Furthermore, as both opinions were provided prior to the Veteran's hearing in October 2012, neither examiner was able to take into account the Veteran's wife's testimony confirming him having leg symptomatology since the 1950s. There is no indication in the evidence of record that the Veteran had diabetes mellitus or peripheral vascular disease in the 1950s. Thus, when affording the Veteran the benefit-of-the-doubt, the Board finds that his right leg symptoms pre-existed his diagnosed diabetes mellitus and peripheral vascular disease. As such, the Board finds that the negative nexus opinions lack probative value and cannot be used as evidence against the Veteran's claim. The Board also acknowledges that the pertinent treatment records pertaining to the below the knee amputation in September 2009 do not identify the Veteran's in-service cold injuries as causes of his disorders that led to the amputation. However, one of the records indicated that the right foot ulcer was chronic and more than likely extended well beyond the six week history that the Veteran had provided. This opinion is consistent with the Veteran's reports of having a continuity of symptomatology since service. To the extent that the Veteran's post-service records indicate that the disorders leading to the amputation were diabetic related, these records also do not address the Veteran's reports of an in-service cold injury and of having a continuity of symptomatology since service. Here, as discussed above, the study submitted by the representative indicates that ulcers and osteomyelitis can be caused by cold injuries. The Veteran's post-service records also appear to indicate that ulcers and osteomyelitis can also be caused by diabetes. Therefore, there are different possible etiologies for the right leg diagnoses that required a below the knee amputation. Considering the Veteran's and his wife's competent and credible reports of a continuity of symptomatology since service, the Board finds that the evidence is in relative equipoise as to whether the post-service ulcer and osteomyelitis were related to the in-service cold injury. Therefore, when affording him the benefit-of-the-doubt, the Board concludes that the evidence is sufficient to support a finding of service connection. Therefore, in considering the Veteran's in-service cold injury, the post-service diagnoses of disorders leading to a below the knee amputation that can be caused by cold injuries, and the Veteran's and his wife's competent and credible lay statements, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that he had a below the knee amputation of the right leg due to a disorder related to his military service. The evidence is in favor of the grant of service connection for a below the knee amputation of the right leg. Service connection for a below the knee amputation of the right leg is, therefore, granted. 38 U.S.C.A §5107 (West 2002 & Supp. 2012). 2. Residuals of a Cold Injury The Veteran contends that he has residuals of a cold weather injury of the left foot that is related to his military service. See, e.g., October 2010 claim; August 2011 notice of disagreement. As discussed above, the Board has conceded that the Veteran did incur a cold injury when stationed in Korea. According to post-service treatment records, the Veteran had several toes of the left foot amputated in December 1997. Records at that time show diagnoses of an infection of the left forefoot; a non-healing ulcer; and acute foot abscess with possible gas gangrene. The records indicate that the Veteran was diabetic. However, the pertinent treatment records do not contain opinions regarding the etiology of the left foot diagnoses. The Veteran was afforded a VA examination in May 2011. He reported having frostbite in service. He reported that the amputation of the left toes was due to the in-service frostbite. The Veteran was diagnosed with transmetatarsal amputation of the first through fifth digits and evidence of atherosclerotic vascular calcification of the left foot. No medical opinion was provided, nor was one requested. However, the examiner did comment that the Veteran had pre-disposing risk factors for gas gangrene such as peripheral vascular disease and diabetes. A fee-based medical opinion was obtained in March 2012. After reviewing the pertinent records, the examiner opined that the Veteran's amputation was less likely than not incurred in or caused by the Veteran's service. The examiner opined that the Veteran's left toes amputations were due to infection, which was due to diabetes mellitus. Frostbite was not a cause of peripheral vascular disease. Severe frostbite could lead to amputation; however, the Veteran did not have a medical diagnosis or treatment for frostbite. As discussed above, the Veteran reported that his in-service symptoms included numbness and tingling and that such symptoms continued after service. Id. T. at 5. He also testified that his feet were discolored in service. Id. at 10. His wife testified that they had been married since 1956 and that he had had problems with his legs at that time that continued to the present. Id. at 14-15. Furthermore, also as noted above, the VA independent study course submitted by the representative indicates that cold injuries could cause ulcerations and that delayed damage to bones and joints could be caused. Based on a review of the evidence, the Board concludes that service connection for residuals of a cold injury is warranted. Initially, for the reasons set forth above, the Board concedes the incurrence of an in-service cold injury. Post-service records clearly show that the Veteran had his left toes amputated in 1997. The Board finds that after reviewing all of the pertinent evidence of record, in addition to affording the Veteran the benefit-of-the-doubt, a nexus between the disorders that led to the amputations and his in-service cold injury exists. In this case, the Veteran and his wife both testified that the Veteran had problems with his lower extremities long before the amputation in 1997. The Veteran competently and credibly testified having numbness and other symptoms since his service. His wife confirmed that he had leg problems as far back as 1956 when they were married. The VA study submitted by the representative shows that cold injuries could cause delayed damage to bones and joints and that disabilities associated with such injuries included ulcers and infection. As discussed above, pertinent diagnoses that led to the left toes amputations included an ulcer as well as an infection of the forefoot. Thus, the Veteran had an in-service cold injury and was diagnosed with disorders associated with cold injuries post-service, which led to his below the left toes amputations. The Board finds that when affording the Veteran the benefit-of-the-doubt, the evidence supports a finding of a nexus between his in-service cold injury and the disorders that resulted in the left toes amputations. In this case, the Board acknowledges that no medical professional has provided any opinion directly relating the Veteran's left toes amputations to a disorder related to his military service. As discussed above, the only medical opinion of record, that of March 2012 fee-based examiner, indicate that the Veteran's left toes amputations were due to an infection, which was due to his diabetes mellitus. However, for the reasons set forth above when determining that service connection for a below the knee amputation of the right leg is warranted, the Board finds that this opinion lacks probative value and cannot be used as evidence against the Veteran's claim. The Board also acknowledges that the pertinent treatment records pertaining to the left toes amputations in December 1997 do not identify the Veteran's in-service cold injuries as causes of his disorders that led to the amputations. However, these records do not contain any opinion regarding the etiology of the Veteran's left foot ulceration and infection. Thus, the record is silent as to the etiology of the disorders that led to the left toes amputations. Here, as discussed above, the study submitted by the representative indicates that ulcers and infections can be caused by cold injuries. Considering the Veteran's and his wife's competent and credible reports of a continuity of symptomatology since service, in addition to the study submitted by the representative, when affording the Veteran the benefit-of-the-doubt, the Board concludes that the evidence is sufficient to support a finding of service connection. Therefore, in considering the Veteran's in-service cold injury, the post-service diagnoses of disorders leading to left toes amputations that can be caused by cold injuries, and the Veteran's and his wife's competent and credible lay statements, and in affording the Veteran the benefit-of-the-doubt, the Board finds that it is at least as likely as not that he has residuals of a cold injury that is related to his military service. The evidence is in favor of the grant of service connection for residuals of a cold injury. Service connection for residuals of a cold injury is, therefore, granted. 38 U.S.C.A §5107. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a below the knee amputation of the right leg is granted. Entitlement to service connection for residuals of a cold injury is granted. REMAND Regrettably, a remand is necessary for further evidentiary development for the issue of service connection for shell fragment wounds of the left lower extremity. According to the Veteran's personnel records, he participated in action against enemy forces when stationed in Korea. His records indicate that enemy fire was received. At the May 2011 VA examination, the examiner noted scarring on the Veteran's left lower extremity as a shrapnel residual. Examination did not reveal any retained shrapnel fragments. At the Veteran's hearing, he testified that the shrapnel was removed in service. T. at 13. In this case, as personnel records reveal that the Veteran engaged in action against enemy forces; examination revealed scarring; and as the Veteran competently and credibly reported that the shrapnel was removed in service, which explains why no retained fragments were found on examination, the Board concludes that the Veteran did incur in-service shell fragments of the left lower extremity. Notwithstanding the scarring shown on examination, the May 2011 examiner diagnosed the Veteran with no residual of gunshot shrapnel noted. Since the Board has conceded that the Veteran did incur an in-service shrapnel injury, the Board finds that a new VA examination is necessary to more fully determine any residual disorders associated with such injury. As scars were noted on examination, the Board is incredulous as to the opinion that no residuals were shown. At the very least, the Veteran has scarring as a residual. Prior to final adjudication of this claim, however, a new VA examination is needed to determine whether other residuals exist. Further, the most recent VA treatment records from the North Hampton VA Medical Center (VAMC) in Atlanta, Georgia and from the Community Based Outpatient Clinic (CBOC) in East Point, Georgia are dated in August 2011. On remand, records of any VA left leg treatment that he received since August 2011 should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service lower extremity treatment that the Veteran has recently received. The Board is particularly interested in records of such treatment that the Veteran may have received from the VAMC in Atlanta, Georgia and from the CBOC in East Point, Georgia since August 2011. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents, should be made in the claims file. All such available reports should be associated with the claims folder. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature and extent of residuals of shell fragment wounds of the lower extremities that he may have. The claims file, including a copy of this Remand, must be made available to the examiner for review in connection with the examination, and a notation that this review has taken place should be made in the examination report. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination reports to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed disorders shown on examination are related to the conceded in-service shell fragment wounds. In answering this question, the examiner should note that the Board concedes that the scarring shown on examination is a residual of the shell fragment wounds. The Board is primarily interested in whether the Veteran has other residuals, including but not limited to: muscle injuries; orthopedic or joint injuries, and nerve injuries. A complete rationale should be provided for all opinions expressed. If the examiner finds that he/she must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Ensure that the examination report complies with (and answers the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issue remaining on appeal. If the benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration, if otherwise in order. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs