Citation Nr: 1316918 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 11-22 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for residuals of cold injuries to the hands to include; hypersensitivity, edema, and fluid accumulation. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1955 to May 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In March 2013, the Veteran appeared and provided testimony at a Video Conference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the 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). FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Board finds that there is sufficient evidence that the Veteran's hypersensitivity, moderate edema, and fluid accumulation in his fingers and hands, bilaterally, are the residuals of cold injuries sustained while on active service. 2. The Veteran does not have arthritis in the right hand and fingers that began in service or has been shown to be causally or etiologically related to active service, to include his cold injuries sustained therein. CONCLUSIONS OF LAW 1. Giving the benefit of the doubt to the Veteran, the residuals of cold injuries to the hands to include; hypersensitivity, edema, and fluid accumulation, were caused by or related to active service. 38 U.S.C.A. §§ 1112, 1113, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2012). 2. The criteria for entitlement to service connection for arthritis of the right hand and fingers have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2012). In order to prevail on the issue of service connection, there must be competent and credible evidence of three things: (1) a current disability; (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) . Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the Veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). Service Connection for Residuals of Cold Injuries to the Hands In this case, the Veteran contends that he sustained frostbite to both of his hands while serving in Korea on active service and that he currently suffers from a bilateral hand disability manifested by hypersensitivity, edema, and fluid accumulation in the hands and fingers bilaterally, caused by the cold injuries sustained in service. The Board notes that the Veteran's service treatment records (STRs) are not associated with the claims file. An April 2011 memorandum to the file indicates that the Veteran's STRs are fire related and are therefore not available for review. However, the Veteran's DD form 214 shows that his military occupational specialty (MOS) was field communications crewman and that he had one year and four months of foreign and/or sea service during his period of active service. The Veteran has reported that his foreign service was conducted in Korea, and based on the length of time in Korea, the Board concedes that he was exposed to cold weather conditions. Since filing his claim in August 2010, the Veteran has consistently asserted that he suffered from episodes of frostbite to his hands while serving in Korea on active service. The Veteran reported that he was responsible for maintaining generators on the military base in Korea which required transporting barrels of fuel from different locations by hand. He reported that during the winter, these duties caused him to develop frostbite and that he has experienced sensitivity and fluid accumulation in both of his hands and most of his fingers since that time. In a January 2011 letter, the Veteran's private physician, Dr. W.A., stated that the hypersensitivity, swelling, and blanching in his fingers reported by the Veteran are consistent with the reports of previous repeat frostbite injuries sustained while serving in Korea. The Veteran was afforded a VA examination in May 2011. At that time the Veteran reported that he had sustained episodes of frostbite to both of his hands while serving in Korea and that since that time he had experienced symptoms of sensitivity and periodic fluid accumulation in his fingers during cold weather. On examination, the Veteran was noted to have moderate edema of both of his thumbs, and his second, third, and fourth fingers bilaterally. X-ray revealed the Veteran had mild degenerative changes at the metacarpophalangeal joint and proximal interphalangeal joint of the third digit and small calcification of the soft tissues dorsal to the third and fourth metacarpal in his right hand. The Veteran's left hand was found to be normal. The examiner noted that there were no functional abnormalities related to the history of cold injuries found on examination, aside from the edema. A March 2012 VA medical opinion found that the degenerative changes found on the May 2011 X-ray were not related to the Veteran's cold injuries sustained while on active service, as the degenerative changes were beyond the region of the cold injuries. The Veteran did not have any degenerative changes in the distal joints, which were the regions affected by the in-service cold injuries. As noted above, the Board has already conceded that the Veteran was exposed to cold weather while serving in Korea. Furthermore, the Board finds no reason to doubt the Veteran's credibility as to his reports regarding his assigned duties while serving in Korea and that he experienced cold injuries to his hands at that time. However, what remains for consideration is whether the Veteran's current symptomatology; hypersensitivity, edema, and fluid accumulation, is related to the cold injuries sustained while on active service. As the Veteran's STRs are not available for review and the clinical evidence of record does not reflect continuity of symptomatology, the Board must also consider the lay evidence of record in determining whether there is a continuity of symptoms. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). As noted above, the Veteran's STRs are not available for review; however, the Veteran is competent to report that he experienced episodes of frostbite in service when performing his duties while stationed in Korea. See Jandreau, v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, he has submitted competent, as well as credible, medical evidence, which supports his assertions that his current symptoms of hypersensitivity, edema, and fluid accumulation are related to his in-service cold injuries. The Veteran's private physician stated in the January 2011 letter that these reported symptoms were consistent with a history of cold injuries. Additionally, the Veteran reported at his VA examination that these symptoms began during active service and have continued since. See Buchanan, supra (the lack of contemporaneous medical evidence is not an absolute bar to a Veteran's ability to prove his claim of entitlement to disability benefits); see also Hickson, supra (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). Furthermore, the Board notes that at his May 2011 VA examination, the VA examiner noted that no functional abnormalities were present at the time of the examination other than edema in the Veteran's fingers bilaterally. However, the Board notes that the Veteran has consistently reported that he only experiences symptoms during the cold, winter months, and at his March 2013 hearing the Veteran testified that at the time of his May 2011 VA examination he was not experiencing any symptoms. Based on the nature of his injuries, the Board finds these statements to be credible. Accordingly, when viewed as a whole, the Board finds the evidence to be in relative equipoise in showing the onset of symptomatology in service, and that it has continued since. The Board acknowledges that further medical inquiry could be undertaken with a view towards development of the claim; specifically, ordering a new VA examination. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993); Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). For the reasons and bases set forth above, the Board finds that service connection for residuals of cold injuries to the hands to include; hypersensitivity, edema, and fluid accumulation, is warranted. In making this determination, all reasonable doubt has been resolved in favor of the Veteran, and the claim for service connection for residuals of cold injuries to the hands to include; hypersensitivity, edema, and fluid accumulation is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The severity of the residuals of the Veteran's cold injuries to his hands is not before the Board at this time. Service Connection for Arthritis of the Right Hand and Fingers The Board notes that at his May 2011 VA examination, the Veteran was found to have mild degenerative changes at the metacarpophalangeal joint and proximal interphalangeal joint of the third digit and small calcification of the soft tissues dorsal to the third and fourth metacarpal in his right hand. In a March 2012 VA medical opinion the VA examiner opined that the arthritis found at the May 2011 VA examination was not caused by or related to the Veteran's history of cold injuries. The VA examiner explained that the degenerative changes were beyond the region of the cold injuries and the Veteran did not have any degenerative changes in the distal joints, which were the regions affected by the in-service cold injuries. The January 2011 letter from the Veteran's private physician noted above contains no indication that the Veteran's arthritis of the right hand and fingers is related to the cold injuries he sustained while on active service and there is no further medical evidence of record providing any indication that his arthritis is related to his active service. Therefore, the Board finds that there is a preponderance of evidence against a grant of service connection for arthritis of the right hand and fingers. As there is a preponderance of evidence against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Board finds that service connection for arthritis of the right hand and fingers is not warranted. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in September 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished and therefore appellate review of the claims addressed above may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that the Veteran's service treatment records are unavailable for review. The record indicates that the in response to VA's February 2011 request for information, the VA was informed that the Veteran's record is fire-related and that there are no service treatment records. In cases where the Veteran's service treatment records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, the RO has obtained pertinent postservice treatment records, the Veteran was afforded an appropriate VA examination in May 2011, and an addendum medical opinion was obtained in March 2012. Although the Veteran and his representative have asserted that the May 2011 VA examination was inadequate to determine the severity of the symptoms related to the cold injuries sustained to his hands, there is no indication that examination, or the May 2012, were inadequate as to the his arthritis of the right hand and fingers. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Therefore, the Board finds that VA's heightened duty outlined in O'Hare, has been met. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for residuals of cold injuries to the hands to include; hypersensitivity, edema, and fluid accumulation, is granted. Entitlement to service connection for arthritis of the right hand and fingers is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs