Citation Nr: 1318729 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-42 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for residuals of cold injuries (frostbite) of the right foot. 2. Entitlement to service connection for a left shoulder condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1980 to June 1980 and from February 1981 to February 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated June 2008, of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a November 2009 statement, the Veteran indicated that he wanted a hearing before the RO hearing official. In a February 2010 written and signed statement, the Veteran withdrew his request for a hearing. Therefore, the request for a hearing has been withdrawn. FINDINGS OF FACT 1. The Veteran does not have a current disability of frostbite or frostbite residuals. 2. The Veteran does not have a current left shoulder disability associated with an injury or incident during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a cold weather injury to the right foot have not been met. 38 U.S.C.A. §§ 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309 (2012). 2. The criteria for service connection for a left shoulder condition have not been met. 38 U.S.C.A. §§ 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the service connection issues on appeal, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant 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, VA will attempt to obtain. The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. In a letter dated February 2008, the RO provided notice regarding what information and evidence is needed to substantiate the claims for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The February 2008 notice letter also included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied that VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the available service treatment records, post-service VA treatment records, a transcript from the hearing at the RO on June 2009, and written assertions from the Veteran and his representative. During the course of this appeal, the Veteran stated that he was treated at Madigan Army Hospital in January 1981 for frostbite of his right foot. Service treatment records include Madigan Army Hospital treatment notes dated June 1981 to February 1982. The RO requested the Veteran's Madigan Army Hospital treatment records from the National Personnel Records Center (NPRC) from January 1981 to February 1981; however, the NPRC certified that a search was conducted, but no records were located. Moreover, the Veteran contends that he first sought VA treatment for his left shoulder condition as early as 1986. In July 2009, the RO requested VA treatment records from the Indianapolis VA Medical Center (VAMC) from 1986 to 1988; however, in August 2009, the VAMC responded by stating that documents pertaining to those dates were not of record. In September 2009, the RO again contacted the VAMC via telephone and was notified that records were not found. For these reasons, the Board finds that the RO has made all reasonable attempts to obtain service treatment records and post-service VA treatment records, and further development would be fruitless. There are no other identified, outstanding records relevant to the instant appeal. The Board acknowledges that the Veteran has not been afforded a VA medical examination with respect to the claims on appeal; however, the Board finds that VA examinations are not necessary to decide the claims. In McLendon v. Nicholson, 20 Vet App. 79 (2006), the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. The Board has reviewed and considered the representative's May 2013 statement requesting VA examinations for the Veteran's conditions. For the reasons explained in this decision, the Board finds that the weight of the evidence is against a finding of any disease or injury during active duty involving frostbite of the right foot or injury to the left shoulder. While there is a finding of a right ankle sprain in December 1983, there is no probative evidence of frostbite or cold related injuries to the right foot during period of service. Moreover, despite several post-service complaints of left shoulder pain and right foot tingling and numbness, there is still no diagnosis for a left shoulder or right foot disorder. Because there is no in-service injury or disease to which competent medical opinion could relate a current right foot or left shoulder condition, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claims for service connection. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant...if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). For these reasons, the Board concludes that VA has fulfilled its duties to notify and assist the Veteran and, accordingly, the Board will proceed to a decision. Significantly, neither the Veteran nor his representative have 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; hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the 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). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. The conditions at issue: frostbite residuals and a left shoulder condition (pain), are not "chronic diseases" listed under 38 C.F.R. § 3.309(a), therefore, 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of 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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service Connection for Frostbite Residuals The Veteran contends that service connection is warranted for frostbite residuals of his right foot. For the reasons that follow, the Board finds that the Veteran does not have a current frostbite disability. The Board finds that the weight of the evidence demonstrates that the Veteran did not have symptoms of frostbite in service. Service treatment records are negative for any complaints, treatment, or diagnosis of frostbite of the right foot. During the June 2009 hearing at the RO, the Veteran testified that he was treated for frostbite at the Madigan Army Hospital in January 1981. See June 2009 hearing transcript at pg. 6. Review of service treatment records from Madigan Army Hospital, however, demonstrate that the Veteran was treated sporadically from June 1981 to February 1982 for right knee pain, testicular pain, skin infection, head and chest cold, and for a possible venereal disease. Notably, none of the Madigan Army Hospital records reflect complaints, treatment, or a diagnosis of frostbite or frostbite residuals. Subsequent service treatment records pertaining to the Veteran's right foot are also negative for frostbite symptoms or diagnosis. For example, in December 1983, the Veteran was treated for a mild right ankle sprain. Despite physical examination and x-ray reports of the Veteran's right foot, the in-service physicians did not report any evidence of frostbite or frostbite residuals. In July 1985, the Veteran complained of right foot calluses; however, no complaints or diagnosis of frostbite or frostbite residuals was made at that time. As noted above, because the Veteran's frostbite residuals are not defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities do not apply, and evidence of a continuity of symptomatology after service is not sufficient by itself to support the claim. See Walker, 708 F.3d 1331. Service connection may still be established if all the evidence of record shows that the Veteran has current frostbite residuals that are related to active service. See 38 C.F.R. §§ 3.303(d). In this case, post-service evidence of record does not contain any notation indicating a diagnosis of frostbite or frostbite residuals. In October 2000, the Veteran sought treatment through the VA for complaints of pain and swelling in the fifth toe of the right foot lasting two weeks. The VA doctor reviewed x-ray reports of the Veteran's right foot and noted no apparent bony or joint structure abnormality. In a December 2004 VA treatment record, the Veteran reported right foot toe pain. According to the Veteran, he recalled that he may have stubbed his toe. The Board notes that a diagnosis of frostbite or frostbite residuals was not rendered at this time. In a May 2006 VA treatment note, the Veteran stated that he had frostbite years ago while in service and noted that he had experienced tingling in his right foot since that time. In a follow-up treatment note, dated August 2006, a nerve conduction study was administered which revealed normal conduction velocity, normal distal latency, and normal compound muscle action potential for the right peroneal nerve and right tibial nerve. The VA chief neurologist stated that the study was normal without any electrophysiologic evidence for neuropathy. Notably, and despite the Veteran's statements regarding treatment for frostbite in-service, the August 2006 VA neurologist did not render a diagnosis of frostbite or frostbite residuals. In this case, the record of evidence indicates that the Veteran's feet were examined on several occasions by VA medical providers in different contexts, including for treatment purposes. The treatment reports on these occasions show no recurring frostbite symptoms since service and no diagnosis of frostbite or frostbite residuals. The Board has considered the Veteran's assertions that he had frostbite in service and experiences current residuals therefrom; however, the Board finds that the Veteran's own opinion that he has such a disorder is not adequate to support the claim as he does not have the qualifications necessary to render a diagnosis of a medical disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Although the Veteran may be experiencing some symptoms relating to his right foot, the Board finds that without a recognized injury or disease, VA is not authorized to award compensation for reported symptomatology. See 38 C.F.R. § 3.303(a) (Service connection is awarded for "a particular injury or disease resulting in disability"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999); aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356, 1363 (Fed. Cir. 2001) (The Court held that symptoms alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.) For the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for frostbite residuals of the right foot, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for a Left Shoulder Condition The Veteran contends that service connection is warranted for a left shoulder condition manifested by pain. The Veteran stated that his left shoulder condition is due to lifting and carrying missiles weighing 200 pounds during service. For the reasons that follow, the Board finds that the Veteran does not have a current disability manifested by left shoulder pain. To the extent that he has a current left shoulder disability, it is not shown to be etiologically related to his active military service. Service treatment records are absent for any complaints, treatment, or diagnosis for a left shoulder condition. At the RO hearing in June 2009, the Veteran stated that he sought treatment at the Indianapolis VAMC for a left shoulder condition as early as 1986; however, as discussed above, the VAMC has indicated that they have no records pertaining to the Veteran during this period. As noted above, because the Veteran's left shoulder disorder is not defined as a chronic disease in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities do not apply, and evidence of a continuity of symptomatology after service is not sufficient by itself to support the claim. See Walker. Service connection may still be established if all the evidence of record shows that the Veteran has a current eye disorder that is related to active service. See 38 C.F.R. §§ 3.303(d). Post-service VA treatment records demonstrate that the Veteran was seen for left shoulder pain in March 2007. Upon review of x-ray reports, the VA physician noted that the left humeral head was positioned appropriately with the glenohumeral fossa. No acute fractures were present and the left acromioclavicular joint was normal. There was no evidence of soft tissue abnormalities and bone mineralization pattern was normal. In an October 2009 VA treatment note, the Veteran reported periodic left shoulder pain. Upon physical examination, the VA physician noted symmetrical motion and strength of the extremities. No peripheral cyanosis or edema was present. The VA physician did not provide a diagnosis for a left shoulder condition. Notably, the Board finds that in all VA treatment notes of record, dated February 1994 to February 2008, the Veteran did not report that his left shoulder pain was due to carrying missiles during service. For treatment, the Veteran would be expected to give a full and accurate history to receive the best possible treatment. In none of these VA treatment records does the Veteran mention left shoulder symptoms in service, or since service separation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet. App. 341 (1991); Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). The VA does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. As noted above, the Veteran was examined by VA physicians on several occasions to determine whether he had a left shoulder disability, however, no such condition was shown. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer at 225. In this case, VA treatment reports and x-ray findings show no currently diagnosed left shoulder disability. The Board has considered the Veteran and his representative's statements. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. As discussed above, in Jandreau, 492 F.3d 1372, the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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 professional. Here, the Board finds that Veteran is competent to report that he experienced intermittent left shoulder pain; however, his statements are not sufficient and competent to establish a diagnosis of a left shoulder disability because a layperson is not competent to identify the condition. See Jandreau. To the extent that he is competent, his contentions are outweighed by the VA treatment records noted above. In sum, for these reasons, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a left shoulder condition, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for residuals of cold injuries (frostbite) of the right foot is denied. Service connection for a left shoulder condition is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs