Citation Nr: 1319831 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 10-18 211 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from July 1954 to July 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction of the claims file is currently at the St. Petersburg, Florida RO. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ) in July 2012. A transcript of the hearing is associated with the claims file. In September 2012, the Board remanded the Veteran's claim for further development. The requested action was taken, and the case has since been returned to the Board for adjudication. In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA. The Board has reviewed both the paper and electronic claims files in rendering this decision. The issue of entitlement to a breathing disorder has been raised by the record, and the Board referred it in its September 2012 remand. It appears that no action has been taken yet by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over it, and it is again referred to the AOJ for any appropriate action. 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 There is at least an approximate balance of positive and negative evidence as to whether the Veteran's current peripheral neuropathy of the bilateral feet had its onset during military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his bilateral foot disability was incurred during his military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Legal Criteria The Veteran essentially contends that either his military-issued boots or exposure to cold weather during service caused his current bilateral foot disability. 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, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Also, certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both 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"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As to competency, 38 C.F.R. § 3.159(a)(2) reflects that "competent lay evidence" means any evidence not requiring that the proponent have specialized education training or experience; lay evidence is competent if provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Id. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Factual Background and Analysis Again, the Veteran contends that his current bilateral foot disability is related to cold exposure during service and/or his service-issued boots. He contends that during service, he always had problems with his feet while wearing the boots, and had frostbite in the feet. He also reported that when stationed in Germany and Austria, he would often have to ride in a vehicle without heating. He recalled his feet were very cold and there was no circulation. He maintains that his current neuropathy of the feet is related to service. In this case, the Veteran's service treatment records (STRs) are unavailable. His DD Form 214 indicates that his military occupational specialty (MOS) was a Personnel Specialist. He served overseas throughout most of his service. It appears that the Veteran first sought VA treatment in July 2008, during which he underwent an initial comprehensive wellness visit. He was accompanied by his wife. He reported many problems and described his past medical history. The Veteran did not, however, report any cold exposure during service or any current bilateral foot problems. Physical examination of the extremities was within normal limits. An August 2009 VA treatment record notes a history of peripheral neuropathy, with chronic numbness and coolness in the bilateral feet. He reported that his feet were exposed to cold weather during his military service, and has had on and off symptoms in the feet since then. In an April 2010 letter from the Veteran's current spouse, she indicated that the Veteran has suffered from continued problems with his feet since she met him. She indicated that they first met in 1979. She recalled that he would ask her to massage his feet, and she remembered being surprised at how cold and stiff his feet had been. She said they the Veteran's feet continued to worsen over the years, and now he experiences problems with numbness and circulation. In his March 2010 substantive appeal, the Veteran recalled that he and his fellow service members had blisters on their feet. He also stated that their feet would bleed following extensive marches. He recalled being exposed to significant cold in Germany and Austria, and was not able go for treatment of the symptoms. Later in his hearing, he advised that he would stomp his feet in unheated vehicles to boost circulation and warm his feet. In July 2010, the Veteran sought treatment at a private neurological clinic. At that time, he reported many decades of tingling, numbness, and worsening pain in the feet. He attributed these symptoms to in-service cold injuries to the feet. Following physical examination, the treating professional diagnosed the Veteran's as having very slowly progressive axonal polyneuropathy and restless leg syndrome. The Veteran was afforded a VA examination in March 2013, during which he was diagnosed as having severe distal axonal sensory-motor polyneuropathy. At the examination, the Veteran reported being exposed to recurrent severe cold weather while serving in Austria. He endorsed numbness and burning in the front half of his feet since service. The Veteran's spouse confirmed his bilateral foot pain for the past 30+ years, and both reported that his symptoms have progressively worsened. Following review of the claims file, and interview and physical examination of the Veteran, the examiner opined that the Veteran's current peripheral neuropathy of the bilateral feet is less likely than not related to the claimed in-service injury, event, or illness. In reaching this conclusion, the examiner indicated that he did not see any reports of cold weather injury in his claims file, nor did the Veteran have any symptoms for many decades after service. The examiner further indicated that although peripheral neuropathy is a known residual of a cold weather injury, the Veteran is also shown to have past alcohol overuse that can also cause peripheral neuropathy. Upon careful review of the evidence of record, the Board finds that service connection for peripheral neuropathy of the bilateral feet is warranted. With respect to the March 2013 VA examiner's opinion, the Board has considered the purported negative nexus opinion-including the comment that alcohol overuse could be the cause of the Veteran's peripheral neuropathy. The examiner also indicated that the Veteran's symptoms can also be associated with cold injury residuals to the feet. In other words, the examiner did not provide a clear opinion as to the etiology of the Veteran's bilateral foot disability. Moreover, the examiner could not have found any contemporaneous medical evidence of treatment for cold injuries of the bilateral feet as the Veteran's STRs are fire-related, and unavailable. The reasonable doubt doctrine requires that there be a "substantial" doubt and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102; see also Bostain v. West, 11 Vet. App. 127 (1998) Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that a physician's statement that the Veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis also implied "may or may not" and was deemed speculative); Beausoleil v. Brown, 8 Vet. App. 459, 462 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (holding that any medical link that is speculative, general or inconclusive in nature is of no probative value and not a sufficient basis to grant service connection). For the same reason, the Board finds the March 2013 VA examiner's opinion to be of no probative value. The Veteran's lay statements concerning cold exposure and bilateral foot pain are not only competent in light of his overseas service, but they are also are credible. Further, his competent reports of the bilateral foot pain and numbness he subjectively experienced both during and after service demonstrates onset and progression of the disability. His lay statements have probative value. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (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")). The Board finds that there is no probative medical opinion regarding a nexus between service and current peripheral neuropathy of the bilateral feet, moreover, the Veteran's STRs are not of record. The Veteran's competent and credible assertions as to the onset of his bilateral foot problems in service and its progressive worsening, are the sole relevant evidence of record. They favor his claim. When the totality of the evidence supports the Veteran's claim or is in relative equipoise, the Veteran prevails on his claim. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection is warranted for peripheral neuropathy of the bilateral feet. ORDER Service connection for a bilateral foot disorder is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs