Citation Nr: 1318302 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-19 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for brain damage as a residual of hypothermia/frostbite, including as secondary to service-connected compression fractures at L1 and L5 with degenerative disc disease, lumbosacral or bilateral radiculopathy. REPRESENTATION Appellant represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1972 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In May 2011, the Board remanded this claim for additional development. In January 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received in March 2013. In March 2013, the Board informed the Veteran that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided him a copy of that opinion and indicated that he was entitled to submit additional evidence or argument provided within 60 days of the date of that letter. To date, the Veteran has not responded. Accordingly, the Board will proceed with the consideration of his case. In addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, these records have been considered by the Board in the decision below. FINDING OF FACT The preponderance of the evidence shows that brain damage as a residual of hypothermia/frostbite was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for brain damage as a residual of hypothermia/frostbite, including as secondary to service-connected compression fractures at L1 and L5 with degenerative disc disease, lumbosacral or bilateral radiculopathy have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in March 2008 and September 2009, provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in October 2012. The record also shows that VA has made reasonable efforts to obtain relevant records identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's available service treatment and personnel records, VA treatment records and examination reports, and available private treatment records. Additionally, the May 2011 remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining additional VA treatment records, private treatment records, lay statements, and scheduling the Veteran for an appropriate VA examination concerning his claim. In response, the RO obtained current VA treatment records through October 2012, which have been associated with the Veteran's virtual claims file. The Veteran was also provided a VA examination in November 2007, and additional VA examinations in June and September 2011, and September and October 2012, in accordance with the May 2011 remand directives. The Board notes the Veteran failed to appear for a scheduled VA mental health examination in October 2012. Regardless, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Finally, the Board obtained a VHA opinion from a specialist in March 2013 in an attempt to determine whether the Veteran's claimed brain damage is attributable to his military service or a service-connected disability. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran presently seeks to establish service connection for brain damage as a residual of hypothermia/frostbite, as secondary to service-connected compression fractures at L1 and L5 with degenerative disc disease, lumbosacral or bilateral radiculopathy. The Board notes that the Veteran's service treatment records make no reference to frostbite or hypothermia occurring in service. Rather, the Veteran has claimed that his service-connected back disability caused him to fall in 2007, which caused frostbite/ hypothermia, which, in turn, led to his brain damage. In greater detail, he contends that that he while he was walking to his mailbox from his house on the night of January 31, 2007; he experienced shooting pain in his back that traveled into his legs causing him to fall. He further states that he was unable to return to his house and was found the next morning by his neighbor. As a result of his night in the cold, he developed brain damage as a residual of frostbite/ hypothermia. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered by the Board as the Board is not obligated to consider "all possible" substantive theories of recovery. Where a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Under section 3.310(a) of VA regulations, service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, and the Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2012). A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether the weight of the evidence supports the claim, or the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim, and the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other issue, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2012). Treatment records provided by the M. C. Hospital reveal that in February 2008 the Veteran was found unresponsive in the cold fully clothed but without shoes. He received initial emergency treatment there and was transferred to the A. M. Hospital that same day for further treatment of his frostbite injuries. Treatment records from the A. M. Hospital show that upon admission the Veteran provided a history of having fallen through a thin patch of ice into the lake near his home and having to walk over a mile with wet clothes before finding assistance. The hospital records also state that the Veteran was a known alcoholic and had reported alcohol use the day prior to his injury. The report of a November 2007 VA spine examination shows the Veteran had reported increased radicular symptoms, more so on the right over the prior few months. He reported weakness in his right leg and that it seemed to "give out." He also reported difficulty walking and use of a cane. The clinical impression was L5-S1 disk protrusion with severe right and moderate to severe left neruoforminal stenosis of the exiting L5 nerve root; multiple level degenerative disc disease lumbar spine. There was no indication of brain damage. Nevertheless, the November 2007 VA examination report suggested that his cold weather injury residuals may be associated with his service-connected back disorder. In May 2011, the Board remanded this claim for a VA compensation examination to determine the nature, extent and severity of the Veteran's claimed hypothermia/frostbite residuals, including brain damage. The Veteran underwent VA examinations in June and September 2011; however, neither of these examinations discussed his claimed brain injury. In September 2012, the Veteran was again examined to determine the etiology of his claimed disorder. The examiner determined that the Veteran had cognitive impairment and exhibited problems with recent and remote recall. The Veteran received a diagnosis of dementia, secondary to chronic alcohol dependence and episode severe hypothermia. The examiner failed to provide an opinion, with sufficient supporting rationale, concerning the nature, extent and severity of the Veteran's dementia. The Veteran was also examined in October 2012 to determine whether he suffered a traumatic brain injury as a result of his reported injuries, as described above. However, the examiner determined the Veteran does not have a traumatic brain injury because hypothermia is not an impact type trauma. The examiner also stated that frostbite/ hypothermia were not the result of his service-connected back disability. The examiner noted it was difficult to ascertain whether the Veteran was intoxicated at the time of the incident, but his recent use was certain as the evidence at the time of the incident suggested the Veteran was experiencing detoxification symptoms in the hospital. Further, the examiner stated that the nature and evidence is for exposure to dry rather than wet cold, since there were not areas of frostbite on the body core as would be expected from an immersion type hypothermia. No further explanation or opinion as to the Veteran's cognitive disorder, or brain damage was provided. The Board also notes the Veteran was scheduled for a mental health examination in October 2012, for which he failed to report. The duty to assist is not a one-way street. If a Veteran 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). Nevertheless, in January 2013, the Board requested a VHA opinion from a neurologist as to the this determinative issue of causation. In response, in March 2012, the VHA neurologist determined that the Veteran has a cognitive disorder, but there was no neuropsychological testing to determine the extent of the cognitive disorder. The neurologist also determined that there was no evidence to suggest the Veteran's cognitive, or any psychiatric, disorder had its onset in service or within one year of separation, or that any psychiatric disorder is due to his service. Finally, the neurologist concluded that it is not likely that any currently diagnosed psychiatric disorder is due to, caused by, or permanently aggravated by the Veteran's service connected back disability. Instead, the neurologist determined that the Veteran's cognitive decline is most likely related to alcohol use. Based on the findings of the March 2013 neurologist, there is no medical evidence of a nexus (i.e., link) between the Veteran's cognitive disorder and service such that service connection may be established. Indeed, the neurologist opined that the Veteran's cognitive decline is most likely due to his chronic alcohol abuse, and there is no medical opinion to the contrary. Further, the only evidence in support of his claim under any theory of entitlement is the Veteran's belief that he suffered from brain damage as a result of frostbite/ hypothermia due to falling as a result of his service-connected back disability. The Board is cognizant of the fact that service connection for a back disability has been established. However, the March 2013 neurologist specifically attributed the Veteran's cognitive disorder to chronic alcohol abuse as opposed to the back disability. In addition, the Veteran does not report recurrent psychiatric symptoms since service. The Board acknowledges that the Veteran is competent to give evidence about what he has experienced, i.e., in this case, that he has experienced cognitive impairment following his exposure to the cold. However, as a lay person without proper medical training and expertise, he is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of a cognitive disorder. For example, he is not competent to state that any currently diagnosed cognitive or psychiatric disorder is the result of his military service because a diagnosis of this condition involves complex medical issues relating to psychiatric evaluation. Jandreau. Because the preponderance of the evidence shows that the Veteran's cognitive disorder, claimed as brain damage, is not related to, or had its onset in service, or may be attributable to a service-connected disability, service connection must be denied. ORDER Service connection for brain damage as a residual of hypothermia/frostbite, as secondary to service-connected compression fractures at L1 and L5 with degenerative disc disease, lumbosacral or bilateral radiculopathy, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs