Citation Nr: 1322425 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 09-49 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for cold injury residuals of the right hand. 2. Entitlement to service connection for cold injury residuals of the left hand. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 1953 to November 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in pertinent part, denied service connection for cold injury residuals of both hands. 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). FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding that he Veteran has a current right hand disability as a result of an in-service cold injury. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current left hand disability as a result of an in-service cold injury. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for cold injury residuals of the right hand are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). 2. The criteria for a grant of service connection for cold injury residuals of the left hand are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice 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). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via a June 2008 letter, which is clearly prior to the August 2008 rating decision that is the subject of this appeal. In pertinent part, this letter informed the Veteran of what was necessary to substantiate a service connection claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information and evidence used by VA to determine disability ratings and effective dates should service connection be established. Based on the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. The Board further notes that the Veteran was accorded VA medical examinations in January 2009, January 2012, and August 2012 which included opinions that addressed his claimed cold injury residuals. The Board acknowledges that his service treatment records appear to be incomplete, as they were involved in a fire. In such situations VA has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (Wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The Board also notes that the record reflects the Veteran is in receipt of benefits from the Social Security Administration (SSA). However, the SSA responded in February 2012 that the medical records could not be sent to VA as they had been destroyed. The Veteran has otherwise had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any other relevant evidence that has not been obtained or requested. For example, he has not identified any outstanding evidence relating his current hand disabilities to an in-service cold injury. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his 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 v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 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 v. Nicholson, 492 F.3d 1372, 1376-77. 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). 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 v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt 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. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Service connection may be established 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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). The Veteran essentially contends that he sustained cold injuries to his hands and feet while on active duty, and that he has current disabilities of both hands as a result thereof. The Board notes that his available service treatment records contain no entries indicative of such cold injuries while on active duty. However, it was previously acknowledged below that there was evidence of military service during winter months and his military occupation was such that he could have possible been exposed to extreme cold weather. Further, as already noted, service connection has been established for cold injury residuals of the feet. Consequently, the record supports a finding that the Veteran sustained a cold injury while on active duty. Adjudication of the Veteran's appeal does not end with a finding that he sustained cold injuries to his hands while on active duty. The Board must now address whether he currently has a chronic disability of either hand as a result thereof. Initially, the Board notes that the Veteran's upper extremities were clinically evaluated as normal on his November 1955 separation examination. There is also no indication of any complaints regarding his hands in the post-service medical records until 2008, decades after his separation from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (The normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.). Further, treatment records dated in August 2008 note he reported his symptoms were hot and cold sensation since 1970, which suggests his symptoms developed after service. The Veteran was accorded VA medical examinations in January 2009, January 2012, August 2012, as well as a December 2012 VA medical opinion based upon review of the VA claims folder. In pertinent part, the January 2009 VA examiner noted the Veteran's account of his in-service cold injuries, but opined that the Veteran did not have cold injury to his hands. The examiner did find evidence of cold injury to the feet. The January 2012 VA examiner indicated the Veteran sustained a cold injury/frostbite bilateral foot, but did not indicate any such injury of the hands. No impairment of the hands was noted on this examination, nor were they specifically referenced in the diagnosis section. The examiner did note the Veteran's reports of cold injury bilateral ears and bilateral leg/knees, but opined that these claimed cold injuries were less likely as not caused by or a result of the Veteran's military service. The rationale being that the service records did not state any evidence of cold weather injuries that resulted in treatment; that the Veteran's complaints were strictly subjective without any physical findings to substantiate the claimed injuries; X-rays did not indicate any evidence of thermal injuries; that the Veteran had a diagnosis of rheumatoid arthritis that was also not caused by his cold weather exposure; and physical examination failed to reveal any changes associated with possible cold weather injuries for any of the examined tissue. The August 2012 VA examiner noted that the Veteran experienced arthralgia or other pain, numbness, and cold sensitivity of both hands. The examiner also noted the Veteran indicated his hand problems originated in 1954, the circumstances of his purported in-service cold injuries, and that the Veteran was diagnosed with frostbite at VA in 1998. X-rays of both hands revealed osteoarthritis of the fingers. The examiner diagnosed degenerative arthritis of the hands and frostbite. However, the examiner did not specifically address whether the diagnosis of frostbite was due to the claimed in-service cold injuries. Further, the examiner indicated that frostbite of the feet occurred in 1952, which was prior to the Veteran's active service; and that the Veteran engaged in combat activities which is not alleged by the Veteran or demonstrated by the other evidence of record. The December 2012 VA medical opinion was promulgated in order to resolve the conflicting findings of the January and August 2012 VA examiners regarding whether the Veteran had any current cold injury residuals of his hands. The VA physician who promulgated this opinion concluded that the claimed condition was less likely than not (less than 50 percent) incurred in or caused by the claimed in-service injury, event, or illness. In support of this opinion, the VA physician noted that the January 2009 and January 2012 VA examinations contained no objective signs of cold injury residuals noted by either examiner for the two visits. There was hair loss noted on the legs due to cold injury residuals, but this was not noted on the hands. It was also noted that the Veteran was not wearing gloves, despite stating that he would do this often because of cold sensitivity, which the physician found indicated unreliable history by the Veteran. The VA physician noted that the August 2012 examination indicated cold injury residuals, but stated that no objective findings were present for this, only symptoms given by the Veteran. There were also errors within the examination report with incorrect dates of service and incorrect claims of combat activity which actually did not exist, as noted by the review notes of the examination printout. The VA physician stated that this indicated the August 2012 examination was less accurate and reliable than the January 2009 and January 2012 examinations. Consequently, the VA physician concluded that, overall, there were no objective signs that cold injury residuals exist on the hands, and that the subjective reports of symptoms were unreliable and not consistent with objective findings. Therefore, the VA physician found that it was less likely as not that the Veteran's current hand conditions were due to his military service. Moreover, the VA physician stated that the conflicting evidence could be resolved by removing the less accurate August 2012 examination, as the January 2009 and January 2012 VA examinations were consistent with each other as to the lack of residuals based on more objective reliable evidence. 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. 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 this case, all of the aforementioned VA clinicians who evaluated this case are presumed to be qualified to provide competent medical evidence. Further, all of them indicated that they were familiar with the Veteran's history based upon review of his VA claims folder. However, as already noted, the August 2012 examination report contained inaccurate information regarding the dates of the Veteran's military service and circumstances thereof. As to whether these clinicians provided fully articulated opinions, the January 2009 VA examiner explicitly stated that there was no evidence of cold injury residuals of the hands, as did the December 2012 VA physician; i.e., these opinions were not expressed in speculative or equivocal language. The January 2012 VA examiner did not indicate any impairment of the hands, but also did not explicitly refer to the hands when expressing his opinion that there was no evidence of cold injury residuals. Nevertheless, it is noted that such findings are consistent with the findings of the January 2009 VA examiner and December 2012 VA physician that there were no current cold injury residuals of the hands. Although the August 2012 examiner included a diagnosis of frostbite, he did not explicitly indicate this frostbite was due to the purported in-service cold injuries nor what complaints were due to frostbite as opposed to the findings of arthritis. As such, it does not appear that the August 2012 examiner's opinion is as articulated and complete as that of the January 2009, January 2012, and December 2012 VA medical opinions. With regard to stated rationale, the Board reiterates that no rationale was provided by the August 2012 examiner, while the January 2012 VA examiner's rationale appeared to focus on joints other than the hands. However, the January 2009 VA examiner explicitly stated that there was no evidence of cold injury residuals of the hands, as did the December 2012 VA physician. Moreover, the December 2012 VA physician's rationale cited to the physical findings of all of the prior examiners, and opinions expressed therein, in concluding that there was no objective evidence of cold injury residuals of the hands. As the December 2012 VA physician's opinion was based upon review of all of the other competent medical opinions in this case, the Board finds it is the most complete opinion of record and entitled to significant probative value. Accordingly, the Board finds that it is persuasive, particularly as it is supported by the documented physical examination findings (or lack thereof) on the January 2009, January 2012, and August 2012 examinations. While the Veteran contends that he has residuals of a cold injury to both hands, there is no indication that he has specialized training to render him competent to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, whether a permanent disability resulted from cold exposure and/or whether a current disability of the hand is due to a cold injury versus post-service disabilities, injuries, or activities, is a matter that requires medical expertise to determine. Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current hand complaints is a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his current bilateral hand disability is not competent medical evidence, and the Board accords significantly greater weight to the probative medical evidence of record than to the Veteran's lay assertions. For these reasons, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran has a current right and/or left hand disability as a result of an in-service cold injury. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Service connection for cold injury residuals of the right hand is denied. Service connection for cold injury residuals of the left hand is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs