Citation Nr: 1331998 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-40 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for residuals of a cold weather injury, to include neuropathy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1953 to July 1957. This matter initially came before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In that decision, the RO denied entitlement to service connection for residuals of a cold weather injury (identified as frostbite to the whole body). The Veteran testified before the undersigned at an August 2012 hearing at the RO (Travel Board hearing). A transcript of that hearing has been associated with his claims folder. In November 2012, the Acting Chairman of the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900 (c) (2013). 38 U.S.C.A. § 7107 (a)(2) (West 2002). In November 2012, the Board remanded this matter for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2013) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). During the August 2012 hearing, the Veteran reported that he had stopped working due to foot problems. As the Board is granting service connection for residuals of a cold weather injury, namely neuropathy, the issue of entitlement to a TDIU has been raised by the record. This matter has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's current neuropathy is the result of an in-service injury. CONCLUSION OF LAW The Veteran's current neuropathy was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (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). As the Board is granting the claim of service connection for residuals of a cold weather injury, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a) (2012). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between 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")). Service connection may also be granted for a disease first 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, a September 2008 examination report from Richard D. Bowling, D.P.M. includes a diagnosis of neuropathy. Thus, a current disability has been demonstrated. The Veteran contends that he experiences current residuals of a cold weather injury that he incurred in service. Specifically, he has reported that he performed various tasks outdoors in extreme cold temperatures while stationed in Korea. Such activities included working on roads, rebuilding bridges, destroying mines, and performing guard duty. As a result, he experienced frostbite of his hands and feet which caused them to turn black. He reportedly received treatment in service for frostbite, but the records of any such treatment are not available. Service treatment records include April and June 1956 reports of treatment for bilateral leg and left foot pain and a burning sensation of the feet. The Veteran was also treated with "felt packs" for foot problems in May 1957. Moreover, service personnel records and the Veteran's DD 214 indicate that his military occupational specialty was a plumber and water supply man, that he received the Korean Service Medal, that he participated in the defense of United Nation positions in Korea from January 1954 to February 1955, and that during his time in Korea he served as a shore party man, a messman, and a carpenter. The Veteran is competent to report cold weather exposure and observable symptoms of frostbite in service. See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. Also, there is no evidence to explicitly contradict his reports, they are not inconsistent with the evidence of record and the circumstances of his service, and service treatment records confirm treatment for foot pain and burning in service. Thus the Board finds that his reports are credible and in-service injuries due to cold weather exposure are conceded. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered on the basis of the places, types, and circumstances of his service, as shown by the evidence). The medical opinions of record reflect that the Veteran's current neuropathy is the result of his exposure to cold weather in service. Dr. Bowling's September 2008 examination report includes an opinion that the Veteran's painful paresthesias from neuropathy was "probably induced by frostbite" to his feet and ankles. There was no further explanation or reasoning provided for this opinion. In a September 2008 letter, Dr. Bowling opined that the Veteran had signs and symptoms of neuropathy which "certainly could have been caused or at least worsened by frostbite that he suffered during his Korean War service." He did not provide any further explanation or reasoning for his opinion. A November 2009 letter from Dr. Bowling includes an opinion that the Veteran's frostbite in service "certainly ha[d] an effect" on his feet and ankles, "specifically with the development of neuropathy." He did not provide any specific rationale for this opinion, but he did explain that the Veteran's neuropathy was chronic, did not have a cure, and would certainly have an effect on his comfort level, ambulation, activity, and shoe gear choice. In July 2013, the Board sought to obtain an expert medical opinion through the Veterans Health Administration (VHA opinion) in accordance with the provisions of 38 C.F.R. § 20.901(a) (2013). In September 2013, a VA podiatrist reviewed the Veteran's claims file and opined that his symptoms of neuropathy were likely ("at least as likely as not") related to service and exposure to cold temperatures. She reasoned that the Veteran served in Korea and that he began complaining of foot pain during and after his return from Korea. He reported exposure to severe cold temperatures while in Korea and he continued to experience pain secondary to exposure to cold temperatures. He reported to sick call beginning in 1956 and his symptoms appeared to continue until the present time. He continued to experience pain and numbness in his feet, which suggested ongoing symptoms of neuropathy. Also, records from Dr. Bowling had confirmed symptoms of neuropathy and there were no other causes of neuropathy noted in the Veteran's medical records other than residuals of a cold injury. The September 2013 opinion is accompanied by a specific rationale that was based upon a review of the Veteran's medical records and reported history and is not inconsistent with the evidence of record. Thus, this opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although Dr. Bowling's September 2008 and November 2009 opinions are of limited probative value because they are either equivocal or unaccompanied by a specific rationale, they at least support a conclusion that the Veteran's current neuropathy is related to cold weather exposure in service. In sum, the preponderance of the evidence reflects that it is likely that the Veteran's current neuropathy is related to cold weather exposure in service. In light of the September 2013 opinion and resolving reasonable doubt in his favor, the Board finds that the criteria for service connection for the currently diagnosed residuals of a cold weather injury, namely neuropathy, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for residuals of a cold weather injury, to include neuropathy, is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs