Citation Nr: 1331423 Decision Date: 09/30/13 Archive Date: 10/02/13 DOCKET NO. 10-19 485 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of frostbite of both feet. 2. Entitlement to service connection for jungle rot. 3. Entitlement to service connection for toenail fungus. 4. Entitlement to service connection for low back and tailbone injuries, postoperative residuals. 5. Entitlement to service connection for residuals of an umbilical hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from August 1948 to September 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Waco, Texas. The Veteran appeared at a hearing before a local hearing officer in December 2010. A transcript of the hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for low back and tailbone injuries, postoperative residuals, and entitlement to service connection for residuals of an umbilical hernia are remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Residuals of frostbite of the feet have not been demonstrated. 2. Residuals of jungle rot of the feet have not been demonstrated. 3. Any current toenail disorder is not of service origin. CONCLUSIONS OF LAW 1. Cold injury residuals of the feet were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 2. Jungle rot of the feet was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). 3. Toenail fungus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In an October 2007 letter, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claims. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The October 2007 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records are not available for review, appearing to have been lost in the 1973 fire at the National Personnel Records Center (NPRC). In July 2009, a Formal Finding of Unavailability of Service Treatment Records was made with specific detail being noted as to what steps were taken to obtain these records, including the notation that the Veteran was contacted by way of letter earlier that month notifying him that the records were not available and giving him the opportunity to submit any service treatment records in his possession. In November 2009, a Formal Finding of Unavailability of Social Security Records was made. The Veteran was notified of this in December 2009 and given an opportunity to submit any additional records in his possession. The Veteran has not identified any other additional outstanding treatment records. As it relates to the cold injury residuals and skin claims, to include the toenails, the Veteran was afforded a VA examination in January 2011. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Given that the examination report set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be adequate for rating purposes. The examination report provided a history supplied by the Veteran and detailed examination results and provided sufficient information to properly address the Veteran's claim and also provided an opinion as to whether the Veteran currently had residuals of a cold injury and also revealed that the Veteran had no skin disorders, to include his toenails. Moreover, neither the Veteran nor his representative has in any way questioned the adequacy of either the examination or the examiner's opinions. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements by both the Veteran and his representative, along with his appearing at hearing before a local hearing officer in December 2010. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further notice or action is necessary to assist the Veteran in substantiating this claim. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran 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). Service Connection-General Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The claimed cold injury residuals of the feet, toenail fungus, and jungle rot of the feet are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102 The Veteran's service treatment records are unavailable through no fault of his own. Hence, there is a heightened obligation for VA to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when the Veteran's medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, 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 the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). Service Connection for Cold Injury Residuals of the Feet The Veteran maintains that he currently has cold injury residuals resulting from his service in Germany. He maintains that he was exposed to cold weather while stationed in Germany and that he has resulting residuals from the cold exposure. The Board finds that the weight of the evidence is against a findings of current disability of residuals of cold injury of the feet. As noted above, the Veteran's service treatment records are not available for review. However, cold injury residuals have not been shown in post-service treatment records. At the time of his December 2010 hearing, the Veteran indicated that he suffered from frostbite while on maneuvers in Germany when stationed there in the Winter. He noted that he had seven toenails pulled about fifteen years prior to the hearing and that he had problems with three toenails, which a physician blamed on circulation problems. The Veteran indicated that the last time he received treatment for his toenails was approximately 1 1/2 years ago. He testified that he was not having problems with frostbite at the time of the hearing. Following the hearing, the Veteran was afforded a VA examination in January 2011. At the time of the examination, the Veteran reported that he was exposed to cold while stationed in Germany. He indicated that they were in the mountains of Germany when he suffered frostbite on the outer part of his feet. He stated that there was no treatment given for the frostbite and he was told to say off his feet and to not wear hard shoes while recuperating. The Veteran noted that his condition improved and he stated that he was not currently receiving treatment and had not received treatment since service. Medical history taken at that time revealed no history of cold-related hospitalization or surgery, cold-related trauma, or cold-related neoplasm. There was also no history of tissue loss or Raynaud's phenomenon. There was no pain and no cold sensitivity and there was no evidence of cold injured areas resulting in tingling, weakness, or swelling. There were also no findings of cold injured areas experiencing muscle cramps. There was no history of decreased or lost sensation, abnormal color, breakdowns or ulcerations, or nail abnormalities due to cold related injuries. There was also no history of arthritis or stiffness of the joints related to cold injuries. Following examination, the examiner rendered a diagnosis of cold injury residuals, not found. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). The United States Court of Appeals for the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). While the Veteran may be competent to report having cold sensitivity, pain, and abnormal neurological sensations in his feet as well as toenail problems, he has not been shown to have the requisite training or credentials needed to ascertain whether the he currently has residuals of a cold injury as this is a medically complex question. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The competent and probative evidence, consisting of post-service treatment records along with the January 2011 VA examiner's opinion, following a thorough review of the claims folder and comprehensive examination of the Veteran, affirmatively shows that the Veteran does not currently have a residuals of cold injury of the feet and outweighs the Veteran's assertions that he has current cold injury residuals. As explained, there is no current, competent evidence of residuals of a cold injury. As such, the criteria for service connection have not been met, and the Veteran's claim for service connection for residuals of cold injury must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Jungle Rot of the Feet The Veteran maintains that he has jungle rot of the feet, or residuals thereof, as a result of his service in Panama. As noted above, the service treatment records are not available for review. Post treatment records associated with the claims folder reveal no complaints or findings of jungle rot or residuals thereof. Treatment records associated with the claims folder reveal numerous findings of normal skin, including treatment records associated with the claims folder dating back to 2003-2004. At the time of his December 2010 hearing, the Veteran reported having had problems with jungle rot while in Panama. He noted receiving treatment in the form of some type of salve and powder. He stated that this caused his toenails to become messed up. He noted that the only problems that remained were the problems with his three toenails. At the time of the Veteran's January 2011 VA examination, physical examination of the feet revealed that they were normal in color. The skin was noted to be thin and fragile. Skin temperature, moisture, and texture were all normal. Hair growth was also found to be normal. There was no fungus and the nails were not affected. There was also no callus formation or ulceration and there were no scars. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich, 104 F. 3d 1328 (1997). Furthermore, the Federal Circuit has held that for purposes of showing a current disability, there must be evidence of the disability at the time of the claim for VA compensation, as opposed to sometime in the past. While the Veteran may be competent to report having had problems with his feet and toenails, he has not been shown to have the requisite training or credentials needed to ascertain whether the he currently has residuals of jungle rot as this is a medically complex question. See Jandreau, 492 Vet. App. at 1372. The competent evidence, consisting of post-service treatment records along with the January 2011 VA examiner's findings affirmatively shows that the Veteran does not currently have a residuals of jungle rot of the feet and this outweighs the Veteran's assertions that he has a current disability related to jungle rot. As explained, there is no current, competent evidence of residuals of jungle rot of the feet. As such, the criteria for service connection have not been met, and the Veteran's claim for service connection for residuals of jungle rot of the feet must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Entitlement to Service Connection for Toenail Fungus The Veteran maintains that his toenail problems started in service and are a result of either cold injury residuals or jungle rot. As noted above, the Veteran's service treatment records are not available for review. Post treatment records associated with the claims folder do not reference any treatment or complaints of toenail problems. At his December 2010 hearing, the Veteran testified that while in Germany, he suffered frostbite. He indicated that approximately 15 years prior to the hearing he had seven toenails removed. He specifically reported that the toenails were not removed in service. He stated that the doctor told him that he had toenail problems as a result of lack of circulation. The Veteran indicated that he currently had three toenails that were affected by fungus, which he believed were caused by cold injuries or as a result of jungle rot that he had in Panama. At the time of the Veteran's January 2011 VA examination, physical examination revealed no problems with the toenails or with any type of fungus. As noted above, service connection has been denied for both jungle rot and cold injury residuals of the feet. As such, service connection for fungus of the toenails as secondary to the either cold injury residuals or jungle rot cannot be granted. Although the Veteran's service treatment records are missing, he has testified that his toenails were removed many years following service, approximately 15 years prior to the December 2010 hearing. Moreover, treatment records associated with the claims folder do not contain any findings of toenail problems being associated with the Veteran's period of service. Furthermore, at the time of the Veteran's January 2011 VA examination, normal findings for the toenails were reported, with the examiner specifically indicating that there was no fungus present. It is also noted that the Veteran did not file a claim with VA for any toenail problems for a number of years after service. This fact also weighs against the Veteran's claim because if he had been experiencing toenail problems at separation it is reasonable to assume that he would have also filed a claim for service connection or at the very least sought treatment at that time. For the above reasons, in service injury or disease or aggravation during service has not here been established, either through the clinical evidence of record or by the statements from the Veteran. While the Veteran may be competent to report having had problems with his toenails, he has not been shown to have the requisite training or credentials needed to ascertain whether any current toenail problems are related to his period of service and/or cold injury or jungle rot residuals, as this is a medically complex question. Jandreau v. Nicholson, 492 F.3d at 1372. The Veteran has also been notified of the necessity to provide a medical nexus between any claimed toenail fungus disorder and service, but has not provided such evidence of a nexus. Moreover, there have been no post-service treatment records associated with the claims folder which demonstrate any evidence of a relationship between any claimed toenail fungus disorder and any period of active service. In sum, the preponderance of the evidence weighs against a finding that any claimed toenail fungus disorder is related to the Veteran's period of service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for residuals of frostbite of both feet is denied. Service connection for jungle rot is denied. Service connection for toenail fungus of the feet is denied. REMAND As to the issue of service connection for an umbilical hernia, as noted above, the Veteran's service treatment records are missing. The Veteran maintains that he sustained a hernia in service when attempting to pull a communications trailer that had gotten stuck. He indicated that he felt something pull in his stomach. He reported that when he returned to base he was checked out but was not hospitalized for the night. The Veteran stated that he first sought treatment for his hernia in 1957-58 and was told that he needed surgery but could not afford it. He indicated that he did not seek any treatment after that as he did not want to have surgery. He noted that in 1965 he was admitted to William Beaumont Hospital and hernia surgery was performed at that time. The Veteran stated that it was his belief that he had sustained a hernia in service and that the pain and symptoms had been present from the time of the in-service injury to the present time. Attempts to obtain treatment records from William Beaumont Hospital were unsuccessful; however, the Veteran did submit a letter from the Lubbock, Texas, VA Outpatient facility indicating that he had been hospitalized in November 1965 at William Beaumont General Hospital for a condition for which he received hospital care. While the letter did not specify the condition for which the Veteran was hospitalized, the Board notes that this corresponds to the statements and testimony from the Veteran that he was hospitalized at William Beaumont for hernia surgery in November 1965. In a January 1999 hospitalization report from Providence Hospital, where the Veteran received treatment for back pain, it was noted that the Veteran had previously had an umbilical hernia repair. As to the Veteran's claim that his current back disorders had their onset in service, the Board notes that the Veteran maintains that when he was on transport from Germany to New Jersey, the boat went out and forward and then came back causing him to hit his back on the stairway. He indicated that it hurt quite a bit and he was taken to the medic. He reported that he was kept in the medic area overnight. The Veteran stated that after landing he was housed in a tent city and was taken for x-rays. He was given heat treatment and pain medication. The Veteran indicated that he had continued to have the same pain and symptoms since the fall. The Veteran also reported having had had two back surgeries. In support of his claim the Veteran submitted statements from several individuals, including one individual who had known the Veteran since 1948. F. P. indicated that he had known the Veteran since 1948 and stated that following his return from the military, the Veteran started experiencing back problems, with continued health deterioration throughout the years. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability; the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). To date, the Veteran has not been afforded a VA examination to address the whether he currently has residuals of an umbilical hernia repair and/or low back disorder, and their relationship, if any, to his period of service. Based upon the above, the Veteran should be afforded VA examinations, with the examiner providing an opinion as to the etiology of any umbilical hernia residuals or low back disorder, if found, and their relationship to his period of service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Schedule the Veteran for the appropriate VA examination to assist in determining the nature and etiology of any current low back disorder. The relevant documentation in the claims folder and all other pertinent records should be made available to the examiner. All necessary tests should be performed. For the purpose of rendering this opinion the examiner is to accept that the Veteran injured his back in service, per his statements noted in the narrative portion of this remand. The examiner is requested to render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current low back disorder had its onset in service or is otherwise related to service. If there is currently diagnosed arthritis, , the examiner should also indicate whether it is as least as likely as not that the disorder was manifest to a compensable degree within one year after separation from service. Complete detailed rationale is requested for each opinion that is rendered. 2. Schedule the Veteran for the appropriate VA examination to assist in determining the nature and etiology of any current umbilical hernia repair residuals. The relevant documentation in the claims folder and all other pertinent records should be made available to the examiner. All necessary tests should be performed. For the purpose of rendering this opinion the examiner is to accept that the Veteran believed he had symptoms related to a hernia in service, as set forth in the narrative portion of this remand. You are requested to render the following opinion: Does the Veteran have currently have residuals of an umbilical hernia repair? If so, is it at least as likely as not that any current umbilical hernia repair residuals had their onset in service or are otherwise related to service. Complete detailed rationale is requested for each opinion that is rendered. 3. Following the completion of the above to the extent possible, the RO should readjudicate the remaining claims on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case, and should be given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs