Citation Nr: 1314641 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-27 138 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for cold injury residuals of the bilateral lower extremities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from September 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered by the RO in the January 2013 supplemental statement of the case. 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 Resolving all doubt in his favor, the Veteran has cold injury residuals of the bilateral feet, manifested by arthralgia, cold sensitivity, and nail abnormalities, as a result of his exposure to cold weather during service. CONCLUSION OF LAW Service connection for cold injury residuals of the bilateral feet, manifested by arthralgia, cold sensitivity, and nail abnormalities, is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for cold injury residuals of the bilateral feet herein constitutes a complete grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran served as a U.S. Army engineer and diesel mechanic with service in Alaska from December 1942 to February 1945. He contends that he experiences residuals of cold injuries to both feet as a result of prolonged outdoor work in Alaska during winter months. 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; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, to include arthritis and organic diseases of the nervous system, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, absent a diagnosis of a chronic disease as defined in 38 C.F.R. § 3.309(a), service connection may not be awarded based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, arthritis and organic diseases of the nervous system are recognized as chronic diseases. Lay evidence is competent when a condition can be identified by a layperson. See 38 C.F.R. §§ 3.159(a)(1) and(2) (defining competent medical and lay evidence) and 3.307(b) (as to chronicity and continuity of symptoms lay evidence should describe material and relevant facts observed and not merely conclusions based upon opinion). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) (overruling the broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007) that competent medical evidence is required when the determinative issues if either medical etiology or a medical diagnosis); see also King v. Shinseki, 700 F.3d 1399 Fed.Cir. 2012); 2012 WL 6029502 (C.A.Fed.) (confirming that Davidson, Id., overruled the broad holdings noted above in Buchanan, Id., and Jandreau, Id.). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service personnel records show that the Veteran was assigned to duties in Alaska during at least a portion of four winter seasons. He credibly reported to a VA examiner in October 2009 that his unit was assigned to build airfields and that he lived in tents and Quonset huts. Although the Veteran's service treatment records were damaged in an archive storage area, copies were obtained and appear to be complete because they include enlistment and discharge physical examination reports and occasional outpatient clinic records throughout the period of active service. The outpatient records are silent for any symptoms, diagnoses, or treatment for any cold injuries. In an October 1945 discharge examination, the Veteran reported and the examiner noted a history of frostbite of both hands during the winters of 1942 and 1943. The examiner did not describe the nature of the hand symptoms and noted that the feet were normal. In October 2009, a VA examiner reviewed the claims file, which included a diagnosis of diabetes mellitus. The examiner noted the Veteran's report that his fingers and toes became numb and painful after working all day in the cold. The symptoms resolved when the extremities were re-warmed. The Veteran denied any blisters or change in skin color and denied any treatment for the symptoms during or after service. He reported that he currently experiences numbness and pain in the tips of the fingers and toes in cooler weather, aching soreness to the touch of the toes, hyperhidrosis, and foot joint stiffness. On examination, the examiner noted normal nails and no skin lesions of the feet. Sensation to a monofilament and tuning fork tests was absent on the left but present on the right. The Veteran was able to stand and walk normally. X-rays of both feet showed minimal degenerative and atherosclerotic changes that the evaluator determined were consistent with age. The examiner diagnosed cold weather injury as manifested by arthralgia of the feet and peripheral neuropathy of the toes. He noted that diabetes could be the cause of some symptoms but that the cold weather exposure long preceded the onset of diabetes. The examiner concluded that it was at least as likely as not that peripheral neuropathy and parathesias of the feet were caused by cold weather exposure in service. In November 2009, the RO granted service connection for residuals of cold injuries to the upper extremities but denied service connection for residual of cold injuries to the lower extremities. The RO noted that service records contained notations of frost bite to the hands but not to the feet. The RO noted that outpatient treatment records were silent for any diagnosis or treatment of peripheral neuropathy. VA outpatient treatment records from January 2009 to January 2013 list diabetes but not peripheral neuropathy or parathesias of the feet as on-going medical problems. On several occasions, the Veteran reported swelling of the feet but none was observed by clinicians. In January 2010, the Veteran reported decreased sensation, numbing, and tingling of unspecified areas but examiners noted no clinical observations. In November 2011, a clinician performed a diabetic foot examination and noted no swelling, coldness, loss of sensation or reflexes. In December 2012, a different VA examiner noted a review of the claims file including the history of frostbite of the hands. The examiner noted the Veteran's description of his outdoor work in Alaska where he experienced coldness of his extremities that required warming in a shower. On examination of both feet, the examiner noted arthralgia, cold sensitivity, and nail abnormalities but no color changes, numbness, hyperhidrosis, tissue loss, or locally impaired sensation. X-rays of both feet were normal. The examiner concluded, "Based on today's clinical exam, the vet[eran] does not have evidence of any significant neuropathy. He had normal vibratory sensation, normal light touch, normal sharp touch and normal position sense. There is no evidence of peripheral neuropathy relate to cold injury or type 2 DM." The Board concludes that the Veteran's reports of cold exposure are competent and credible as they are consistent with the nature and circumstances of his active duty service as his duties as a diesel mechanic at an airfield under construction likely required routine outdoor work on engines and generators. Moreover, he has been awarded service connection for cold injury residuals of the bilateral upper extremities based on such exposure. Additionally, the Veteran's reports of symptoms of numbness and toe pain after the exposure and continuity of symptoms of cold sensitivity since service are competent and credible because they are observable by a lay person and have been accepted without challenge by clinicians aware of the nature of the cold exposure. However, the record contains inconsistent clinical observations, diagnoses, and evidence both for and against a relationship of the current symptoms to cold exposure. Outpatient treatment records show only occasional reports of foot swelling and discomfort by the Veteran with no mention of cold exposure. Clinicians did not observe the Veteran's reported foot symptoms during routine primary care visits and diabetic foot examinations. Nevertheless, the VA examiners in 2009 and 2012 both accepted the Veteran's reports of foot pain and cold sensitivity and the latter observed nail abnormalities. The 2009 VA examiner diagnosed peripheral neuropathy based on the Veteran's reports and the absence of response to microfilament and tuning fork tests only of the left foot. The outpatient examiner in 2011 and the VA examiner in 2012 noted no touch sensitivity and found no neuropathy. There were no electrodiagnostic tests performed at any time. Therefore, the Board concludes that the Veteran's current bilateral foot disability is best characterized as arthralgia, cold sensitivity, and nail abnormalities. These symptoms were noted and accepted by both VA examiners. The weight of credible medical evidence is that the Veteran does not currently have peripheral neuropathy as it was diagnosed only by one of three examiners based solely on the Veteran's reports and clinical observations of one foot. Neurologic symptoms were not observed by primary care clinicians or by the 2012 VA examiner. There is evidence both for and against causation of the current symptoms by cold weather exposure in service. The VA examiner in 2009 concluded that because the symptoms manifested prior to the diagnosis of diabetes, the symptoms were caused by cold weather exposure as described by the Veteran. He did not address the Veteran's age, but contemporary X-rays showed mild degenerative changes and artherosclerotic findings consistent with aging. The 2012 VA examiner concluded that the Veteran's foot symptoms were subjective and that the symptoms were secondary to advanced age. She did not find objective evidence of cold injury. In this case, the qualifications of the examiners, their review of the claims file, acceptance of the Veteran's history and current symptoms, and level of detail of the clinical examinations and opinions are in relative equipoise. Both examiners accepted the Veteran's reported symptoms without challenge as imaginary or malingering. The Veteran's exposure to cold weather is supported by the record of service, and he was granted service connection for cold injuries of the upper extremities. As there are probative medical opinions both for and against the claim, the Board will resolve all doubt in favor of the Veteran and find that service connection for cold injuries of the bilateral feet, manifested by arthralgia, cold sensitivity, and nail abnormalities, is warranted. ORDER Service connection for cold injury residuals of the bilateral feet, manifested by arthralgia, cold sensitivity, and nail abnormalities, is granted. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs