Citation Nr: 1320317 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-31 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a bilateral foot condition, claimed as a residual cold injury. REPRESENTATION Veteran represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1968 through May 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA examination of his bilateral foot condition. An examination was provided in April 2011 and the matter returned to the Board for appellate consideration. However in October 2012 the Board again remanded this matter finding the April 2011 examination was inadequate and a new examination was required. As discussed below, the actions specified in the October 2012 Remand were completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT A chronic disorder or the feet was not shown in service or for many years thereafter; and, the preponderance of the evidence fails to establish that the Veteran's current bilateral foot condition is related to his active military service, to include his exposure to cold. CONCLUSION OF LAW The criteria for service connection for a bilateral foot condition, to include as residual cold injury, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for a bilateral foot condition, which the Veteran has claimed was caused by cold weather exposure while stationed in Korea from April 1969 to May 1970. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. 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 Veteran's service treatment records were reviewed. In his May 1968 entrance examination the Veteran's feet were marked as normal. The Veteran sought treatment for pain in his right foot in February 1970, which he stated he had been experiencing for the previous four days. The care provider noted the Veteran's pain was in his metatarsal arch, worse when walking and standing. Tenderness and swelling were also noted. Physical examination and x-ray were both within normal limits. The Veteran was given an ace bandage and crutches for his condition. At his April 1970 separation physical the Veteran's feet were noted to be in normal condition. In the accompanying report of medical history the Veteran indicated he had foot trouble. Written comments from the physician, however, noted the Veteran's right foot was swollen "T" months ago, but noted his foot was "fine now." The Board finds the service treatment records provide evidence the Veteran experienced temporary pain and swelling in his right foot during his military service which resolved before his separation three months later. As such, the service treatment records do not establish the Veteran developed a chronic foot disability during his active military service. The Veteran asserts that his bilateral foot disability resulted from an in-service cold injury. Consideration is given to the fact that his service personnel records reflect that he served in Korea from April 1969 through May 1970, indicating he spent at least one winter in Korea. Exposure to cold/freezing temperatures is thereby conceded. 38 U.S.C.A. § 1154(a). However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, residuals of a cold injury (such as frostbite) fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). A cold injury is not the type of conditions that are readily amenable to mere lay diagnosis, as the evidence shows that the cause of certain skin problems and foot pain have various possible etiologies and specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report exposure to cold temperatures and experiencing pain and skin changes related thereto, there is no indication that the Veteran is competent to state that his exposure to cold temperatures in service resulted in a cold injury (such as frostbite) or that any of his current foot problems are related to his in-service exposure to cold temperatures. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating vascular or skin disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence does not constitute competent medical evidence and lacks probative value. Review of the post-service treatment records in the claims file does not reflect the Veteran made any complaint of or sought treatment for a bilateral foot condition for over thirty years after his separated from military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a lengthy period without medical complaints about a condition can be considered as a factor in resolving a claim). Particular attention is given to private treatment records dated in June 2004, January 2005, May 2005, and January that all specifically note that the Veteran denied any musculoskeletal pain or skin problems. There was also no mention of cold injuries in service or the chronic residuals thereof. The earliest treatment records regarding the Veteran's feet/legs are from June 2006. On this date the Veteran complained of itchy, scaly, dry skin to his private physician. The Veteran reported this condition had been present off and on for about a few weeks to a few months. The physician opined the Veteran had lichen simplex chronicus. It is important to note that the Veteran made no reference to his active service or a cold injury at this time. Such weighs against his current assertion that he suffered a cold injury in service and been experiencing the chronic residuals since. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Instead, as noted, he gave a history of experiencing skin symptoms for only the past few months. In April 2011 the Veteran was provided with a VA examination. The examiner reviewed the Veteran's claims file, as well as personally interviewed and examined the Veteran. The Veteran reported he had pain in his feet during his military service and was exposed to the cold in 1969 while stationed in Korea. The Veteran reported he continued to experienced pain in his feet after separation from service. He stated he could walk about a fourth of a mile and then had increased pain in his feet. The Veteran used over-the-counter shoe inserts to cushion his feet. Upon examination the examiner noted the Veteran walked with a normal gait and had no loss of skin or digits on either foot. The examiner diagnosed the Veteran as having mild pes planus in his right foot with no abnormal weight bearing. The Veteran did not have pes planus in his left foot. The examiner further opined that the Veteran did not have any evidence of any skin disease or cold injury residuals on his feet. As such, he opined it was less likely than not that there was any cold injury related to the Veteran's military service. The Board notes this examiner stated the Veteran was not treated for his feet during military service. However, as discussed above, the Veteran made a complaint of right foot pain and swelling during his military service. For this reason, among others, the Board found this examination was inadequate in a March 2011 decision and remanded for a new VA examination. The Veteran was provided with an additional VA examination in November 2012. The Veteran reported throbbing pain in his feet which began approximately twenty years ago, or over twenty years after his separation from military service. The Veteran reported if he had to be on his feet he had to take a 10-20 minute break three to four times per day. The Veteran reported his pain was worse with walking, standing, and cold weather, and was relieved by rest off his feet. The examiner noted the Veteran's medical history consistent with the record, including his complaint of right foot swelling during military service that resolved. The examiner noted the Veteran was diagnosed with metatarsalgia in 1992, over twenty years after he separated from military service. Upon examination the examiner noted the Veteran's left dorsal foot was slightly edematous. She also noted his distal toes bilaterally appeared hyperpigmented and slightly purple. The examiner also noted diminished soft and sharp touch to the dorsum and plantar foot, as well as diminished dorsalis pedis and posterior tibials pulses bilaterally. The examiner also noted calluses on both feet. Finally, the examiner noted a fine macular papular rash over the anterior tibial shaft of the Veteran's legs. Imaging studies did not reveal any abnormal findings. The Veteran reported his foot pain was related to exposure to cold during military service in Korea. He said the pain had been present for 20 years and his rash present "for years." The examiner opined the Veteran's description of his pain was consistent with neuropathy. He suspected of peripheral arterial disease. She explained her opinion by noting the Veteran received relief of pain when resting his feet and the distal purplish color of his toes. The examiner also noted aspects of the Veteran's rash were similar to arterial lesions seen with peripheral vascular disease. Based on the foregoing the examiner opined the Veteran's current foot pain was less likely than not caused by his military service. The examiner opined his condition was instead probably due to peripheral vascular disease and neuropathy. She explained the Veteran had several risk factors of these conditions, including hypertension, hyperlipidema, glucose intolerance, and a twenty pack year history of smoking. The examiner opined the Veteran also had chronic lichen planus. The examiner noted that according to most medical literature the etiology of chronic lichen planus was still unknown, however was thought to be the result of an immune mediated mechanism. The Veteran noted stress could aggravate lichen, but found it would be mere speculation to link a cold injury to chronic lichen planus condition. As such, the examiner found it was less likely than not that the Veteran's current rash condition was caused by any exposure to cold in Korea during 1969 through 1970. The Board notes that the two VA examiners diagnosed the Veteran with different foot conditions, the April 2011 examiner found the Veteran had pes planus while the November 2012 examiner found the Veteran had metatarsalgia. However, the Board finds the specific diagnosis is not relevant because the weight of the medical evidence of record does not establish the Veteran's current foot condition, regardless of classification, was related to his active military service. Both of these conditions relate to the Veteran's current complaints of bilateral pain, especially while walking or standing. The Board has thoroughly reviewed and pondered the evidence of the record, but for the following reasons, it is simply not persuaded that it is at least as likely as not (50 percent or greater) that the Veteran has a current bilateral foot condition that either began during or was otherwise caused by his military service, to include any cold exposure therein. Service treatment records do not establish the Veteran developed a chronic bilateral foot disability during his military service. Further, while he may have been exposed to cold temperatures while stationed in Korea, there is no evidence in the service treatment records of him sustaining any type of cold injury or treatment related thereto. To the contrary, as noted, the Veteran did not seek treatment for any foot condition for over thirty-five years after he separated from military service, and during this treatment he consistently reported his pain began nearly twenty years after his separation. While this fact alone is not dispositive, it does in this case tend to weigh against the conclusion that the Veteran has experienced a bilateral foot condition consistently since service. Such a conclusion is further bolstered by the fact that both VA examiners opined the Veteran's current foot condition, if any, was less likely than not related to his active military service. These reasons combined lead the Board to conclude that it is less likely than not that the Veteran's current bilateral foot condition, including his complaints of pain and skin rash, either began during or was otherwise caused by his military service. The Veteran's claim for service connection is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in October 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. 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. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. As discussed above, this case was previously remanded by the Board, most recently in October 2012. In this decision the Board ordered any VA treatment records available after August 2005 should be associated with the claims folder and a new VA examination should be provided. A previous remand confers on the veteran, as a matter of law, the right to compliance with the remand orders Stegall v. West, 11 Vet. App. 268 (1998). Review of the record establishes VA treatment records through November 2012 were associated with the claims file, and an additional VA examination was provided in November 2012. As such, the Board finds the remand orders were substantially complied with and the Board may continue with appellate review. See D'Arie's v. Peake, 22 Vet. App. 97 (2008). The Veteran was also provided with two VA examinations regarding his bilateral foot condition (the reports of which have both been associated with the claims file). In an October 2012 remand the Board determined the April 2011 examination was inadequate in that it failed to consider the Veteran's in-service complaint of right foot pain, as well as failed to consider whether the Veteran's bilateral foot rash began during or was otherwise caused by his military service. For this reason the Veteran was provided with an additional VA examination in November 2012. This examiner reviewed the Veteran's claims file, as well as personally interviewed and examined the Veteran. The Board finds this examination properly considered all relevant evidence in the Veteran's claims file, including his in-service report of right foot pain. This examiner also addressed whether the Veteran's bilateral foot pain and his rash began during or were otherwise caused by his active military service. Finally, she cited to her careful review of the claims file to support her conclusions. As such, the Board finds this examination was adequate and complied with the remand instructions. The Board notes in a March 2013 written Informal Hearing Presentation the Veteran's representative specifically alleged the November 2012 VA examination was not inadequate. First, the representative argued it was unclear from the record if the Veteran's recent VA treatment records were associated with the claims file before the examiner provided her opinion. The Board concedes the record is unclear on this point, however, review of the recently submitted VA treatment records do not contain any medical reports relating to the Veteran's bilateral foot condition. As such, the Board notes that even if the examiner was not provided with the recent VA treatment records before providing her opinion the Veteran was not prejudiced by this potential error. Second, the representative argued the examiner's opinion was vague and unclear, and did not contain an explanation for her conclusions. However, as discussed the Board finds this VA examiner was clear and provided a rationale for her conclusions. Finally, the representative argued the examiner's statement that it would be speculative to link cold injury to chronic lichen planus meant the examiner could not determine etiology without resorting to speculation and as such the issue should be found in the Veteran's favor. However, the Court of Appeals for Veterans Claims (Court) has held that a conclusion that an etiology opinion is not possible without resort to speculation is a medical opinion and may be relied upon by the Board if the examiner explains the basis for such an opinion. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner was asserting that although the etiology of chronic lichen planus was still unknown by the medical community, it would be speculative, that is less likely than not, to link the condition to a cold injury. As such, the Board finds the examiner explained the basis for her opinion. Based on the foregoing the Board finds the November 2012 VA examination was adequate. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for service connection for a bilateral foot condition, to include as residual cold injury, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs