Citation Nr: 1318372	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  10-26 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for cold injury residuals.

2.  Entitlement to service connection for hypertension, including as secondary to cold injury residuals.


REPRESENTATION

Appellant represented by:	Pennsylvania Department of Military and Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran served on active duty from November 1951 to November 1953.

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Jackson, Mississippi, which-in pertinent part, denied the benefits sought on appeal.  The RO in Philadelphia, Pennsylvania, exercises current jurisdiction over the claims file.

In January 2013, the Veteran testified before the undersigned at a Board hearing via video conference with the Veteran sitting at the local RO, and the undersigned sitting at the Board's Central Office in Washington, DC.  A transcript of the hearing is in the claims file and has been reviewed.  The undersigned held the record of the hearing open for 30 days for submission of additional evidence.  No additional evidence was received.

In February 2013, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development.

The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal.  The Board has reviewed the documents in the Virtual file and notes that the RO considered them prior to certifying the appeal to the Board, as noted in the May 2012 supplemental statement of the case (SSOC).  Thus, the Board may consider them without the necessity of a waiver.  See 38 C.F.R. § 20.1304 (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).

The issue of entitlement to service connection for hypertension is REMANDED to the RO via the Appeals Management Center (AMC).  The Veteran will be advised if further action is required on his part.


FINDING OF FACT

There is a causal connection between currently diagnosed cold injury residuals of the bilateral lower extremities and the Veteran's active service.


CONCLUSION OF LAW

The requirements for entitlement to service connection for cold injury residuals of both lower extremities are met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307(a), 3.309(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a).   

The VCAA is inapplicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim.  

Governing Law and Regulations

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  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). 

Certain chronic diseases such as hypertension and peripheral neuropathy are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service.  This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element in a claim involving a chronic disease, is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007), if the condition is a chronic disease.  Walker v. Shinseki, 708 F.3d 131 (Fed. Cir. 2013).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was "noted" during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Walker, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  If a chronic disease is adequately demonstrated during service and at any time thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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 profession."  Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  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, 469-70 (1994) (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").
Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. §§ 3.307, 3.309. 

The Board must fully consider the lay assertions of record.  Davidson, 581 F.3d 1313.  A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology.  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, 581 F.3d at 1316; See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007).
 
When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. 

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, citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a). 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, 2 Vet. App. at 618. 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  The bottom line is that lay testimony, where probative on the issue, still must be assessed for credibility and accuracy.

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. See 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Analysis

The Veteran asserts that he sustained frostbite during basic training in 1951 at Aberdeen, MD.  He also submitted an affidavit from a friend who attested that he visited the Veteran at some of the installations where he was stationed.  The friend also noted he observed the Veteran's frostbite injuries while the Veteran was home on Christmas leave in 1951.  VA and private records currently note the Veteran to have sensory peripheral neuropathy of the lower extremities.

Most of the Veteran's service treatment records are unavailable.  His November 1953 Report of Medical History reflects he denied any prior history of foot trouble or neuritis.  The November 1953 Report Of Medical Examination For Release from Active Duty reflects the Veteran's lower extremities and neurologic system were assessed as normal.

The earliest VA outpatient records are dated in August 2001, and they do not indicate any objective pathology of the Veteran's lower extremities.  The Veteran has asserted, however, that his feet were not examined at that checkup.  A May 2008 VA outpatient entry notes the Veteran's complaints of numbness of the toes due to a history of in-service frostbite.  Examination of the feet revealed decreased sensation in both feet.  No lesions or other pathology was noted.  Decreased sensation was also noted at VA in April 2010, but visual examination of the feet was otherwise normal.  An October 2012 private entry notes an EMG revealed bilateral peripheral neuropathy of the lower extremities of unknown etiology.

VA podiatry outpatient records of October 2012 note skin atrophy and mycotic nails of both feet in addition to decreased protective sensation.  An April 2013 VA examination report reflects the examiner conducted a review of the claims file as part of the examination of the Veteran.  The examiner noted the Veteran's reported history of frostbite in basic training in 1951.  Based on the Veteran's reported history and the physical examination of the Veteran, the examiner diagnoses included bilateral lower extremity peripheral neuropathy; bilateral degenerative joint disease of the feet; bilateral skin atrophy of the feet; and, bilateral onychomycosis of the feet, all-in the examiner's opinion, apparent residuals of a prior cold injury as reported by the Veteran.  The examiner noted that the symptoms noted in the Veteran's lower extremities were common to cold injury residuals and were as likely as not related to the cold injury in service.

The VA treatment records and examination report establish that the Veteran has current cold injury residuals in the lower extremities.  The Veteran has provided competent evidence of in-service cold injury and his report is buttressed by the report of a friend's contemporaneous observations.  See 38 C.F.R. § 3.159(a)(1).

Service personnel records confirm that the Veteran was stationed at Aberdeen Proving Grounds from December 10, 1951 to February 6, 1952.  The negative examination at service separation provides evidence against the claim, but the Board finds no basis on which to doubt the Veteran's credibility or recall as it relates to the claimed instance of in-service frostbite e, and the evidence is in at least equipoise on the question of whether there was an in-service cold injury. 

The VA examiner's opinion links current cold injury residuals to the cold injury in service.  There is no contrary opinion of record.   Thus, the elements for service connection have been demonstrated and service connection for cold injury residuals is granted.  38 C.F.R. §§ 3.102, 3.303.  



ORDER

Entitlement to service connection for cold injury residuals is granted.



REMAND

In its previous remand, the Board sought an opinion as to whether the Veteran's current hypertension was due to, or aggravated by, the Veteran's in-service cold injury.  The Board noted two articles that suggested that hypertension was affected by cold weather.

The April 2013 examination report reflects the examiner reported that hypertension had its onset in 1953, but did not provide a reason for this conclusion.  The examiner also opined the Veteran's hypertension was not caused or aggravated by the asserted cold injury residuals.  The examiner noted the basis for the opinion is that hypertension is not a known usual cold injury residual and that hypertension had its onset a couple of years after the cold injury.  

The Board is required to insure that medical opinions are based on a complete and accurate record, are fully articulated and supported by reasoned analysis.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The Board is required to obtain clarification of the examiner's opinion.

The appeal is REMANDED for the following:

1.  The examiner who provided the April 2013 opinion should be asked to provide reasons for the conclusion that the Veteran's hypertension had its onset in 1953. 

The examiner should also be asked to provide the basis for the statement that hypertension was not a known usual cold injury residual (e.g. is the statement based on research, is there medical literature on this subject, or is it based on the examiner's experience with similar cases?).

The examiner should note the articles cited in the prior remand:  Sheldon Shelps, M.D., Blood Pressure: Is it affected by Cold Weather? Mayo Clinic; www.mayoclinic.com/health/blood-pressure/AN)1786; Cold Weather Hikes Blood Pressure, UF Scientist Warns, Science News, (Feb. 9, 2005); www.sciencedaily.com/release/2005/02/050205123018.htm.  The examiner should provide an opinion as to whether these and similar articles would support a finding that the Veteran's hypertension was proximately due to or aggravated by the cold weather injury.

The examiner should be provided the claims folder in conjunction with his review.

If the examiner is no longer available, another physician should be asked to review the claims folder and provide opinions as to whether: 

a. hypertension had its onset in service; or was manifested by diastolic readings predominantly 100 or more, systolic readings predominantly 160 or more; or history of diastolic readings of 100 or more with need for constant medication within one year of service; and if not; 

b.) whether hypertension is proximately due to or aggravated (permanently worsened by) the service connected cold injury.  If there is aggravation, the examiner should note whether there is medical evidence created prior to the aggravation that shows a baseline of the hypertension prior to such aggravation.

2.  If any benefits sought on appeal remains denied, the agency of original jurisdiction should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter or matters 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).



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs