Citation Nr: 1322868	
Decision Date: 07/17/13    Archive Date: 07/24/13

DOCKET NO.  06-31 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for residuals of frostbite injuries to both feet.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1956 to June 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In July 2010, the Board denied the claim for entitlement to service connection for the residuals of frostbite injuries to the feet.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims, which granted the parties' joint motion for remand in a January 2011 order, vacating the Board's decision and remanding the matter to the Board for further action.

In May 2010, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed at the Board.  The Veteran requested a new hearing and subsequently testified before the undersigned VLJ sitting at the RO in May 2013.  Transcripts of both hearings have been associated with the claims file.

Additional evidence was received in June 2013 without a waiver of RO consideration; however, as the Board's decision is fully favorable to the Veteran, no prejudice results to him in the Board considering it in the first instance.  38 C.F.R. § 20.1304.

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 & Supp 2012).


FINDING OF FACT

Resolving all doubt in favor of the Veteran, the evidence shows that residuals of frostbite injuries to the feet have been medically linked to cold exposure in service.


CONCLUSION OF LAW

The criteria for service connection for residuals of frostbite injuries to the feet have been met.  38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

The Veteran asserts that he has current residuals of frostbite injuries to the feet as a result of cold exposure without adequate protection while serving in Korea in the winter.  He reports having problems with his feet since this injury.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.304.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The evidence of record establishes that the Veteran has a current bilateral foot disability.  Specifically, the May 2011 VA examiner diagnosed him to have significant severe cold injury of both feet with distortion of the nails, painful dysesthesias, cold sensitivity, and hyperhidrosis.  The November 2011 VA examiner diagnosed peripheral neuropathy.  Medical evidence shows current symptoms of pain, numbness, cold sensitivity, locally impaired sensation, tingling, and burning.

The evidence also suggests in-service incurrence of a cold injury.  The Veteran has consistently reported in hearing testimony, in lay statements, and to medical professionals that, while stationed near the DMZ in Korea in winter of 1956-1957, he was left for several days without adequate protection from the cold.  Following this episode, he states that he was treated at Camp Casey for frostbite and later in Seoul, South Korea.  He testified that his toenails fell off, in addition to other symptoms.  The Board notes that the Secretary and the Veteran have both taken notice of the fact that Camp Casey was a U.S. Army Garrison located in Toungduchon, Korea, north of Seoul, operated at the time of the Veteran's service.

Regrettably, the National Personnel Records Center indicated that the Veteran's service treatment records and service personnel records were destroyed in the July 12, 1973 fire in St. Louis, Missouri, and are therefore unavailable.  When there is evidence that a Veteran's service records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions.  Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005).

The Veteran is competent to testify to that of which he has personal knowledge, including his exposure in Korea, the onset on his frostbite symptoms, and recurrence of his symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  The Veteran is therefore competent to report that he endured prolonged exposure to cold in Korea and was subsequently treated for frostbite.  Moreover, the Board finds the Veteran is credible in this report, as it is consistent with the time, place, and circumstances of his service, and his reports are internally consistent.  Finally, the mere fact that his assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible, especially in light of the unavailable records.  Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  Resolving doubt in favor of the Veteran, the Board finds that he sustained frostbite of both feet in service.

Finally, there is persuasive medical evidence that the Veteran's current bilateral foot disability is related to the in-service cold exposure.  The May 2011 VA examiner diagnosed his current disability as a significant cold injury.  Competent and credible testimony has established that the Veteran has not sustained any cold injuries since service.  Additionally, a September 2006 letter from treating physician Dr. Revanna states that the Veteran "has a history of frostbite while in Korea and hospitalization for eight weeks for the same.  [He has had] abnormal sensation of the bilateral feet since then."

The November 2011 VA examiner opined that the Veteran's current bilateral foot disability is not related to service, but is instead related to his diabetes and vascular disease.

The Veteran himself has consistently and competently testified, reported in lay statements, and reported to physicians that his bilateral foot symptomatology has continued since the cold injury in Korea.  The November 2011 VA examiner stated that he had only experienced foot symptoms for 10-15 years, but in a subsequent statement the Veteran reiterated that this is inaccurate and that his symptoms have existed since service.  The Veteran also submitted a lay statement from a friend who has known him for 70 years and personally observed "foot trouble" when he returned from the service in 1958.

Resolving doubt in favor of the Veteran, the Board finds that the Veteran's current bilateral foot disability is related to service.  Accordingly, the criteria to establish service connection for residuals of frostbite injuries to the feet are met.  38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102;Gilbert. 

ORDER

Service connection for residuals of frostbite injuries to the bilateral feet is granted.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs