Citation Nr: 1306484 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-15 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of a cold injury, to include frostbite of the bilateral lower extremities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to August 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In March 2011, the Veteran, accompanied by his representative, testified at a hearing before the undersigned Acting Veterans Law Judge at the local regional office. A transcript of these proceedings has been associated with the Veteran's claims file. The Veteran's claim was denied by the Board in a May 2011 decision. He subsequently appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (Joint Motion), it was noted that a remand was warranted, and that the Veteran should be afforded a VA examination to address his claim. Specifically, the Joint Motion indicated that the Veteran's lay statements, including suffering from blisters on his feet due to frostbite while serving in Korea, coupled with medical evidence of record which demonstrated abnormalities of the bilateral feet (to include decreased hair growth, dry soles, and thick calluses), triggered the need for a VA examination to assess the etiology of any current bilateral foot disorder. This motion was granted by the Court in an Order dated February 27, 2012. Pursuant to the Court's Order, the Board remanded the Veteran's claim for a VA examination in August 2012. 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). FINDING OF FACT Evidence of record demonstrates that the Veteran does not manifest current residuals of a cold injury, to include frostbite of the bilateral lower extremities, and establishes that no current foot disorder had an onset in or is otherwise attributable to service. CONCLUSION OF LAW Residuals of a cold injury, to include frostbite of the bilateral lower extremities, were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Further, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) Before addressing the merits of the issue of entitlement to service connection for residuals of a cold injury, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in July 2009 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. These letters accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in September 2009. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. Nothing more is required in this case. Further, the Veteran's service treatment records and pertinent post-service medical records have been obtained, to the extent available. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See Green v. Derwinski, 1 Vet. App. 121 (1991). Here, following an August 2012 Board Remand, a VA examination was provided in October 2012 to ascertain whether the Veteran suffered from any disorder of the bilateral lower extremities and, if so, whether those disorders were etiologically-related to his period of active service. To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The October 2012 VA examination report is adequate, as the examiner included a thorough review of the file and provided findings relevant to the issue at hand following the examination. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159(c)(4) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection In this case, the Veteran has claimed entitlement to service connection for residuals of a cold injury, to include frostbite of the bilateral lower extremities. He contends that, while serving in Korea, he was exposed to cold weather for four hours a day as a mail courier. He further indicated that he slept in tents and experienced symptoms such as tingling and pain in the bilateral feet while walking and at night, as a result of exposure to the cold. To establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304 (2012). The United States Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). Turning to the Veteran's service treatment records, the Board notes that there are no complaints or diagnosis for frostbite, or for any other disorder of the feet, or any residual of a cold injury. Occasional swelling of the left knee was noted in January 1953. On separation from active service in August 1954, the examiner noted that the Veteran's feet and lower extremities were normal. Post-service, the Veteran reported that he experienced pain and burning in his feet during a March 2009 VA outpatient evaluation. He reported that his feet were cold, and that he suffered from blisters during his period of active service. He further reported that he had frostbite while in Korea and that, over the years, the symptoms of frostbite had worsened (wears socks at night). The Veteran was referred for a nerve conduction study (NCS), following which no diagnosis was assigned other than "history of frozen feet-cold, war injury." It was further noted that decreased hair growth was present on both feet and lower legs, and that he had thick calluses on his great toes, as well as dryness on the soles of his feet. The Veteran was afforded an additional NCS in June 2009. At that time, he complained that he had pain on the bottom of his feet, and that he had experienced aching and tingling since he was in the Korean War. The Veteran was noted to have good strength in both legs, DTRs +2, and symmetric position sense intact for both feet. He was able to walk on toes and heels. Following objective testing, the examiner stated that the Veteran had a normal nerve conduction study of the legs, with no electrophysiological evidence of large-fiber polyneuropathy. Treatment notes thereafter, including in November 2009, are silent as to a diagnosis of frostbite or residuals of a cold injury. In December 2009, a VA outpatient report indicated that EMG tests were normal in both feet. During his personal hearing at the RO in December 2009, the Veteran testified that, shortly after he returned from service in 1954, he sought VA treatment in about 1955 because his feet would "blotch" throughout the day and "get little pimples." He was changing his socks frequently. The Veteran stated that he attempted to obtain the records from the 1955 treatment visit, but that they were unavailable. During his Board hearing, while the Veteran has testified that he sought post-service treatment for his feet in 1955, he did not seek re-evaluation for those symptoms, or report them to health care providers, between 1955 and 2009. See Transcript, p. 16. Following a Board remand, the Veteran was afforded a VA examination in October 2012. The Veteran reported that his symptoms began during his service in Korea in 1954, and that he continued to experience foot symptomatology after separation. He indicated that he did not report to a medic while in service and that he never saw a podiatrist post-service. He also stated that his pain in the soles of his feet never completely went away. On examination, arthralgia was noted in the bilateral feet, with no other observable symptomatology. Diffuse thickening of the soles was demonstrated, as was the expected callused areas of the great toes, balls of feet, heels, etc. Pedal pulse was decreased in the left lower extremity. Both feet were warm and with good color. There was decreased sensation to monofilament testing bilaterally. The Veteran's feet were not tender to palpation, pressure, or compression. He walked well, with a minor limp, using a cane. The examiner remarked that the limp was most likely the result of a knee condition. There was no evidence of scarring, or areas of prior skin/tissue slough from freezing. Nails were thickened, though this was a typical finding in the Veteran's age group, and not associated with cold exposure. Imaging studies did not suggest cold damage. Vascular changes were present, but not surprising in someone the Veteran's age with a history of coronary artery disease. In all, there was simply no evidence of residual cold exposure, the examiner concluded. Ultimately, the Veteran was diagnosed with a plantar calcaneal spur, spurring at the attachment of the Achilles tendon, and arterial vascular calcifications. The examiner noted a review of the claim file, and opined that it was less likely than not that a bilateral foot disorder was the result of an in-service cold injury. To support that opinion, it was noted that service treatment records did not demonstrate any complaints of foot disorders during the Veteran's period of active service. It was further noted that the Veteran worked for over 40 years, post-service, without any difficulty as the result of his claimed disorder (the first indication of which was in 2009). The examiner also stated that the Veteran's symptoms while in Korea, to include blisters on his feet that would pop open and drain, and pain in the soles of his feet, did not appear to be frostbite events, and his subsequent symptoms over the years did not appear to be the long-term effects of frostbite/cold injury. The Veteran denied any frostbite/cold exposure skin lesions, and he did not complain of toe involvement pertaining to either blisters or foot pain. The examiner noted that the Veteran had never been diagnosed with a cold injury. The Veteran contends that he has current residuals of a cold injury he suffered in service. Laypersons are competent to diagnose a disability only if (1) the condition is simple to identify (such as a broken leg), (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later diagnosis by a medical professional. Id. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. In this case, although the record contains VA treatment reports documenting complaints of bilateral foot pain, no medical professional has opined that that the Veteran has a disorder of either foot which was incurred during service, or is in any way related to exposure to the cold. While a VA examiner in March 2009 noted a "history of frozen feet-cold, war injury," a diagnosis of a specific cold injury was not provided at that time. The Veteran is competent to describe his recollections of foot pain and his current symptoms of foot pain, but he is not competent to establish a medical diagnosis for his complaints of foot pain, since the cause of his current foot pain is not observable by a lay person. Residuals of a cold weather injury are not simple to identify or diagnose. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific cause of the Veteran's current foot pain, that determination falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As to the Veteran's assertions that he currently suffers from pain and blisters of the bilateral feet, which have been chronic since service, lay evidence is one type of evidence that must be considered in reviewing a claim, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1992) (distinguishing between competency (a legal concept determining whether testimony may be heard and considered) and credibility (a factual determination going to the probative value of the evidence to be made after the evidence has been admitted)). See Barr v. Nicholson, 21 Vet. App. 303 (2007). This would include weighing the absence of contemporary medical evidence against lay statements. In this case, the Veteran himself has testified that he did not seek medical evaluation for complaints of foot pain during the period from 1955 to 2009. The passage of such a lengthy period during which the Veteran sought no evaluation for foot pain diminishes the credibility of the Veteran's testimony as to the chronicity and continuity of the symptoms. Based on the foregoing, the Board finds that there is no competent lay or medical evidence of record linking a current foot disorder to exposure to cold or to the Veteran's period of active service. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. See Colvin. Despite the presence of private and VA treatment records throughout the appellate period, not a single examiner has linked any currently-diagnosed disorder to the Veteran's military service, to include as the result of exposure to the cold. In sum, the competent, credible, and probative evidence is adverse to a finding that that the Veteran has current residuals of a cold injury of the feet, to include frostbite, and is against a finding that the Veteran has a current disorder of either foot that began in service, or is otherwise related to service, to include exposure to the cold. There are no contemporaneous records of any complaints, findings, treatment, or diagnosis of any chronic disorder during service, and the Veteran's separation examination was negative as to the claim on appeal. Instead, the record establishes that, more than four decades after separation, the Veteran complained of bilateral foot pain. The competent and most probative evidence of record indicates that it is less than likely that any current disorder of the Veteran's feet or of either foot is related to his military service. The Board has fully considered the lay statements of record as well as the medical evidence. However, and as explained above, the competent evidence demonstrates that the Veteran does not manifest current residuals of a cold injury, to include frostbite of the bilateral lower extremities, and establishes that no current foot disorder had an onset in or is otherwise attributable to service. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The preponderance is against the Veteran's claim for entitlement to service connection for residuals of a cold injury, to include frostbite of the bilateral lower extremities, and the claim must be denied. ORDER Entitlement to service connection for residuals of a cold injury, to include frostbite of the bilateral lower extremities, is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs