Citation Nr: 1325059 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 07-34 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a bilateral hand disorder, to include a skin disorder and a neurological disorder (previously claimed as frostbite of the fingers). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to September 1966, from January 1991 to July 1991, and from April 2003 to April 2005. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The RO in Jackson, Mississippi, is currently handling the matter. In October 2011 the Board remanded the issue on appeal for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. During the Veteran's first period of military service, a diagnosis of frostbite was noted in the Veteran's service treatment records. 2. The Veteran's frostbite was not noted at the time of his entry into service for his second and third periods of military service since there are no Medical Examinations for Enlistment of record for either period. 3. By granting the Veteran the benefit of the doubt, his bilateral hand disorder manifested by frostbite and cold hands is related to his military service. CONCLUSION OF LAW The criteria for the establishment of service connection for a bilateral hand disorder have been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306(b), 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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 and 3.326(a) (2012). Here, with regard to the issue on appeal, the decision below is granting in full the benefits sought. Accordingly, even assuming that an error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). When such chronic diseases are at issue, the second and third elements for service connection may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service, where there is an increase in disability during such war service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment will not be considered service connected unless the disease is otherwise aggravated by service. 38 C.F.R. § 3.306(b). In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran had three periods of active military service: October 1962 to September 1966, January 1991 to July 1991, and April 2003 to April 2005. The Veteran claims that his current bilateral hand disorder is due to frostbite during his first period of military service. As discussed below, after granting the Veteran the benefit of the doubt the Board finds that service connection for a bilateral hand disorder manifested by frostbite and cold hands is warranted. According to a service treatment record in December 1963 the Veteran was diagnosed with frostbitten fingers. It was noted that the Veteran was exposed to cold four days prior while setting up an ice rink. He had some discomfort and swelling at the joints. In March 1965 the Veteran was seen for a ganglion cyst of the right wrist; it was noted that there was no trauma. Also, in March 1965 the Veteran was put on a permanent physical profile for his right hand with the limitation of no exercises of his right hand; no medical diagnosis was noted. In November 1965 he was seen for trauma to the left elbow. In December 1965 he was put on a physical profile because of trauma to the left elbow; it was noted that he should use it actively on his own. In February 1966 a Statement of Patient's Treatment was done and it was noted that the Veteran was seen in November 1965 for a painful elbow as the result of an auto accident. The first impression was sprained elbow or contusion of distal humerus and the final impression was a healed contusion or sprain of the left elbow. On the Veteran's August 1966 Report of Medical Examination for Separation the Veteran's upper extremities were noted to be normal. On the September 1977 Report of Medical History the Veteran checked "no" to swollen or painful joints and skin disease. On his November 1978 Annual Report of Medical History the Veteran checked "yes" to skin disease but "no" to swollen or painful joints. On his August 1979 Report of Medical History for Reenlistment the Veteran checked "yes" to skin disease but "no" to swollen or painful joints. In January 2005 the Veteran was seen for an evaluation of hands for frostbite over thirty years ago. It was noted that the Veteran had a history of severe frostbite over thirty years ago and had cold hands and feet all the time, there was no real pain; lab tests came back normal. In an undated service treatment record the Veteran wrote that his hands were frostbitten several years ago and they now got cold easily and he wanted to discuss some alternatives; there are no service treatment records indicating that alternatives were ever discussed or that the Veteran was provided a follow-up appointment. On a February 2008 Post Deployment Health Assessment the Veteran checked "no" to having any numbness or tingling in the hands or feet and to skin diseases or rashes during that deployment. The Board notes that there are no Reports of Medical Examination for Enlistment for either the Veteran's second period of military service or his third period of military service. The Veteran was afforded a VA examination in February 2007. The Veteran reported that when he had frostbite in 1963 his hands were swollen to over 30 percent of their normal size and red; the swelling lasted several days. They hurt if it was cold and they even felt cold in the summer; he had intermittent numbness in the finger tips when it was cold. On examination he had slightly decreased sensory results to temperature sensation in a glove distribution, more so on the ulnar side; his hands were cold but of normal color. He was assessed with mild subjective superficial sensory loss in the hands suggestive of polyneuropathy. The VA examiner then stated that based on the findings and available past medical evidence he could not tie the sensory loss to a cold injury without resorting to mere speculation. In October 2007 the Veteran's private physician stated the Veteran was seen for complaints of coolness in his hands; the coolness had been present since 1964 when he was building an ice skating rink on Lake Erie while he was in the military. He developed frostbite at that time and had problems with cold hands since then. He did not have problems in the summer in Mississippi but once it was below 70 degrees he then developed coolness in his hands; there was no pain or color changes but he did have some mild swelling. The private physician stated that the Veteran had cool fingers which certainly maybe related to some vasospastic component dating back to his frostbite; fortunately, it was not severely symptomatic. In May 2008 the Veteran was seen by the previous VA examiner and he stated that his previous summary remained accurate. In a review of the Veteran's service treatment records he noted that a December 1963 clinic note indicated that cold exposure four days prior and complaints of soreness and stiffness in the fingers; he was felt to have arthritic discomfort secondary to joint strain and possibly cold but no frostbite. He stated that the Veteran's service treatment records showed no complaints of swollen or painful joints; bone, joint, or other deformity; arthritis, rheumatism, or bursitis; or neuritis, lameness, or loss of finger or toe over many years following the cold exposure. In January 2005, prior to his deployment, he noted that his hands got cold in the summer and a clinic note the same month noted complaints of "cold hands and feet without any real pain since severe frostbite 30 years ago." He was then seen by a vascular surgeon in October 2007. The VA examiner assessed the Veteran with a subjective sense of cold hands (and feet) in cooler weather and stated that there was no evidence of vascular disease and no clear evidence of vasospastic disorder. He stated that he had to reaffirm his prior statement that he could not relate the Veteran's subjective complaints or subjective sensory loss to his reported cold exposure. The Veteran was afforded a VA hand and finger examination in November 2011; he was diagnosed with pain in his joints in both hands. The Veteran reported that he continued to have bilateral hand discomfort during cool to cold weather. The VA examiner opined that the Veteran's bone/joint condition secondary to cold exposure was less likely as not caused by or the result of military service. Also, in November 2011 the Veteran was afforded a VA skin examination. It was stated that the Veteran first presented for treatment in 1963 after working on an ice rink and there was no record or history of cold hands before that date. In 2003 and 2005 he was noted to have cold hands on examination but lab results in 2005 for collagen vascular disease and thyroid were normal. He stated that he would have to resort to mere speculation to say if the Veteran's current bilateral hand disorder was related to his first period of active duty. His other hand problems at that time, including finger infection, wrist cyst, hand rash, and elbow injury would not cause cold hands. It would also be mere speculation to say that the Veteran's cold hands were present before his second period of active duty; there was no objective evidence either way. His other problems (tremor, neurodermatitis) were not causes of cold hands. There is no evidence that the Veteran's cold hand problem was worsened during active duty over his second and third tours of duty. Nothing was mentioned prior to his active duty but it was mentioned when he was on active duty in January 2005 but his blood tests were negative. He stated that in conclusion he would have to resort to mere speculation to say that the Veteran's cold hands were caused during his first period of duty, or aggravated by the following periods of duty. There is no way to know with any certainty that the Veteran did not have cold hands before his first period of duty, even before the ice rink frostbite. In February 2012 an addendum was made that he reviewed the Veteran's claims file and there were no changes in his previous opinion. In July 2012 a VA skin medical opinion was rendered and it was stated that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness; also, the Veteran's condition that clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. He stated that the Veteran's service treatment records did not support a diagnosis of frostbite nor was there any evidence of peripheral neuropathy; nor do they suggest any hand complaints for years following his first active service period. In addition, he had no sequale of a cold injury at the present time and there was no clear evidence of a cold injury in service; in addition, subjective complaints of cold hands are common and the color changes in his hands are not consistent with vasospasm or Raynaud's phenomenon. On examination he had no findings or residuals of a cold injury; there were no skin or nail changes, arthritis, vascular disease, and his sensory loss was more consistent with an ulnar neuropathy than a cold injury. A diagnosis of cold injury residuals could not be made. His elbow trauma and ganglion cyst were medically unrelated to his hand complaints. His essential tremor clearly predated service and all three service periods. There is no evidence that the Veteran's military service altered the natural course of this disorder and a cold injury elbow injury, and ganglion cyst have no medically know relationship to essential tremor. Neurodermatitis is licehnification of the skin due to excessive scratching caused by itching. The VA examiner stated that he did not find any neurologic cause for the scratching. He also stated that the Veteran may have polyneuropathy based on his subjective sensory loss but the VA examiner could not relate this to any of the Veteran's periods of service, his in-service complaints, or his service experiences. At another July 2012 VA examination the VA examiner stated that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He stated that the Veteran was never diagnosed with frostbite and though a post deployment medical assessment documents the Veteran with a history of frostbite the physician's note does not support that diagnosis. After a careful review of the Veteran's claims file and by granting the Veteran the benefit of the doubt the Board finds that the Veteran's bilateral hand disorder is related to his military service. The Veteran asserts that as a result of in-service frostbite he currently has a bilateral hand disorder; while, VA examiners state that the Veteran does not have any residuals of a cold injury it also stated in the Veteran's claims file, including in VA examination reports, that the Veteran has subjective complaints of cold hands and subjective sensory loss. Thus, the Board finds that the Veteran does have a current diagnosis of a bilateral hand disorder manifested as cold hands bilaterally. At the time of the Veteran's first period of military service he was presumed to be sound at the time of examination, acceptance, and enrollment. The presumption of soundness would be rebutted for the Veteran's first period of military service if clear and unmistakable evidence demonstrates that the Veteran's residuals of a cold injury existed before acceptance and enrollment and was not aggravated by such service. However, the Veteran does not contend that his residuals of a cold injury preexisted his first period of service; instead, he contends, and his service treatment records document, that he had frostbite during his first period of service. The Veteran was diagnosed with frostbite in December 1963 after he was exposed to cold while setting up an ice rink; there were no notations or reports of frostbite or any residuals at the time of the Veteran's separation from service. There are no service treatment records for the Veteran's second period of service; thus, the Veteran is presumed to be sound at time of his examination, acceptance, and enrollment for his second period of service. For the Veteran's third period of service since there is no Report of Medical Examination for Enlistment he is presumed to be sound at the time of examination, acceptance, and enrollment. A veteran is entitled to service connection for a disorder present in service unless the disorder was noted in the induction physical examination or unless clear and unmistakable evidence shows that the condition preexisted service. Junestrom v. Brown, 6 Vet. App. 264, 266 (1994). The presumption of soundness would be rebutted for the Veteran's second and third periods of military service if clear and unmistakable evidence demonstrates that the Veteran's residuals of frostbite existed before acceptance and enrollment and was not aggravated by such service. While there is one opinion of record (July 2012 VA skin examination opinion) that the Veteran's bilateral hand disorder clearly and unmistakably preexisted service and was not aggravated by service there is also an opinion (November 2011 VA examination) that it would be mere speculation to say that the Veteran's cold hands were caused during his first period of duty, or aggravated by the following periods of duty. By "clear and unmistakable evidence" it is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). Thus, the Board finds that there is no clear and unmistakable evidence that the Veteran had a preexisting bilateral hand condition and the Veteran is presumed to be sound at the time of enlistment for each period of service. Even though there is no clear and unmistakable evidence that the Veteran's bilateral hand condition preexisted any of his periods of military service, service connection can still be warranted on a direct service connection basis. As noted above, the Veteran has three periods of active duty military service. It is documented in the Veteran's service treatment records that he did have an in-service cold injury that was diagnosed as frostbite as the result of setting up an ice rink. While the Veteran was not seen again during his first period of service for frostbite/cold hands he did report skin disease in August 1979 and in January 2005 he reported a frostbite injury that occurred 30 years prior; he also sought medical treatment and advice for those residuals but there is no evidence of any follow-up appointments. After a careful and considered review of the medical and lay evidence of record, the Board observes that there are medical opinions of record (February 2007, May 2008, two in November 2011, and two in July 2012) against the Veteran's claim and a medical opinion (October 2007) for the Veteran's claim. The Board notes that the findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). However, the Board is free to assess medical evidence and is not obligated to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App 614 (1992). The Board finds that the positive nexus opinion for the Veteran's claim of service connection is more probative and service connection is warranted. The Board finds that the opinions in the February 2007 VA examination, May 2008 VA examination, and November 2011 VA skin examination are not probative since the examiners stated that it would be mere speculation to opine if the Veteran's bilateral hand condition was due to military service. Medical opinion based on speculation, without supporting clinical evidence, does not provide the required degree of medical certainty and would be of no probative value. Bloom v. West, 12 Vet. App. 185, 187 (1999); Black v. Brown, 5 Vet. App. 177, 180 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Thus, the Board finds that the February 2007 and May 2008 opinions are not probative. The November 2011 VA hand and finger examination is not probative because there is no rationale provided with the opinion; instead he just state that it was less likely as not caused by the Veteran's military service. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Thus, the Board finds that this opinion is not probative because there is no rationale accompanying the (negative) nexus opinion. There are also two negative opinions from July 2012. The July 2012 VA skin examiner's negative nexus opinion relies on there being "no clear evidence of a cold injury in service" however, there is documented evidence in the Veteran's service treatment records that he was treated for a cold injury of the hands and diagnosed with frostbite. The July 2012 VA skin examination opinion relies on facts that are controverted by the Veteran's service treatment records. The VA examiner stated that the Veteran was never diagnosed with frostbite; however, the Board finds that the Veteran's service treatment records from all three periods and his post-service treatment records document that the Veteran does have a diagnosis of cold hands. The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As true with any piece of evidence, the credibility and weight to be assigned to these opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Thus, the Board finds that the July 2012 VA examination opinions are not probative. Though there is only one positive opinion of record (October 2007 private opinion) the Board finds that it is the only probative opinion of record. The private physician relies on facts that are corroborated by the Veteran's service treatment records and provided a rationale for his opinion. He offered clear conclusions with supporting data as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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"). Consequently, the Board assigns great probative value to the October 2007 private opinion and finds that this is the only probative medical opinion of record. In addressing lay evidence and determining what, if any, probative value may be attached to such evidence, attention must be 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). Certainly, the Veteran is competent to report his own symptoms (which he perceives as associated with his bilateral hand condition). See, e.g., Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board also finds that the medical history provided by the Veteran is credible, as it is generally consistent with the other evidence in the record and is not contradicted by any inconsistencies which materially affect the credibility of his statements. After careful review of the record and consideration of all medical findings and opinions on file, and giving the benefit of any doubt to the Veteran, the Board finds the evidence for and against the claim to be at least in approximate balance. Under such circumstances, resolution of all reasonable doubt shall be in the Veteran's favor. Consequently, the Board concludes that service connection for a bilateral hand condition is warranted. ORDER Service connection for a bilateral hand disorder claimed as frostbite is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs