Citation Nr: 1333348 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 06-24 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for residuals of a cold injury to the left foot. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from October 1994 to March 1995 and from March 2004 to December 2004. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran was granted service connection for an anxiety disorder by rating decision in June 2009 and assigned a 50 percent rating effective January 6, 2009. The case was remanded by the Board in May 2011 for additional development. In December 2012, the Board denied entitlement to service connection for residuals of a cold injury to the hands, for a kidney disorder, and for a prostate disorder; granted an initial evaluation of 10 percent for status post fistulotomy prior to June 6, 2006; denied an evaluation in excess of 10 percent for status post fistulotomy on and after June 6, 2006; and remanded the issues of entitlement to service connection for residuals of a cold injury to the left foot and entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD), to the RO for an examination and nexus opinion. A new VA examination of the left foot was obtained in May 2013, and a nexus opinion based on all of the evidence of record was obtained in June 2013. Consequently, there has been substantial compliance with the December 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the United States Court of Appeals for Veterans Claims (Court) or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). Based on a change in diagnosis, a July 2013 rating decision granted entitlement to service connection for PTSD, with depressive disorder not otherwise specified (NOS), previously rated as an anxiety disorder, and assigned a 70 percent rating effective May 15, 2013. Because service connection for PTSD with depressive disorder NOS has been granted, this issue is no longer part of the current appeal. Because the Veteran testified at a travel board hearing in March 2011 before another Veterans Law Judge (VLJ) of the Board who is no longer employed at the Board, the Veteran was advised by Board letter in September 2012 that he had the right to a new Board hearing by the VLJ who would decide his appeal. See 38 C.F.R. § 20.707 (2013). In October 2012, the Veteran responded that he did not wish to appear at another hearing before the Board. The issue of entitlement to TDIU is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have residuals of a cold injury of the left foot that is causally related to his active service. CONCLUSION OF LAW Residuals of a cold injury of the left foot was not incurred in or related to active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in December 2004, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. The letter informed the Veteran of what evidence and information he was responsible for, and the evidence that was considered VA's responsibility. In compliance with the duty to notify, the Veteran was informed in a July 2011 letter of the criteria for assignment of a disability rating and/or effective date, in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. The evidence of record includes VA treatment records, a VA examination report, and statements on appeal. There is no indication that there is outstanding available evidence that is pertinent to the appeal. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159, see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). A VA evaluation of the left foot was obtained in May 2013 and a nexus opinion was obtained in June 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinion obtained in this case is adequate, as it is predicated on a reading of relevant medical records in the Veteran's claims file, to include the physical examination findings. The opinion considered all of the pertinent evidence of record at the time, to include the Veteran's medical records and statements, and provides a rationale for the opinion stated. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his March 2011 hearing. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), it was held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the individual who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. The Veteran's representative and the VLJ who conducted the hearing asked questions to ascertain the Veteran's the nature of the Veteran's contentions with regard to the service connection issue on appeal. No pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Analysis of the Claim The Veteran, who is service-connected for residuals of a cold injury of the right foot, seeks service connection for residuals of a cold injury of the left foot, which he contends was incurred in service at the same time as his right foot injury. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Service connection may be presumed for certain chronic diseases, such as arthritis, that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. § 3.307, 3.309(a) (2013). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The Veteran's service treatment reports reveal that he had cold weather blisters of the right foot in January 1995, which were noted to be resolving in February 1995. The Veteran lower extremities were normal on medical examination in January 1999. The Veteran complained in November 2003 of a history of foot trouble, with a notation that he had corns on his toes and bunions on the left foot due to turf toe. Mild pes planus was noted on medical examination in November 2003. A VA examiner did not find any current symptoms related to cold injury when the Veteran was examined in January 2005. The diagnosis was status post cold injury with residual symptoms of excessive sweating of the hands and feet. The Veteran was hospitalized at St. Francis Medical Center in December 2005 for injury to the second left toe. X-rays showed a faint lucent line transversing the distal tuft of the left second toe and an orthopaedic pin extending through the second toe; a non-displaced fracture could not be excluded. The Veteran testified in March 2011 that he incurred cold weather injury to his hands and feet while marching in the snow in a blizzard at Fort Leonard Wood, Missouri in 1995 and that he continues to have residuals such as discoloration of the toenails. X-rays of the left foot in August 2011 showed pes planus, hallux valgus, possible bunionectomy changes, and narrowing or fusion of the second PIP joint. The diagnosis on VA medical examination in September 2011 was that there was no evidence of left foot involvement or residual as a result of the cold weather in 1995. The Veteran underwent another evaluation of his left foot in May 2013 in response to the December 2012 Board remand. The diagnosis was status post left foot surgery for hallux valgus deformity in 2005. Because the claims file was not made available to the examiner, no nexus opinion was provided. A supplemental medical opinion from a doctor of podiatric medicine was obtained in June 2013 based on a review of the record, including the claims file. The doctor concluded that it was less likely as not that the Veteran's foot condition was caused or aggravated by service because there were no signs or symptoms of cold weather injury of the left foot on VA examination in May 2013, because the Veteran's bunion surgery in 2005 involved a structural deformity not associated with exposure to the cold, and because there were no signs or symptoms of cold injury on X-rays in January 2005 and August 2011. The doctor noted that changes indicative of residuals of a cold injury, such as distal turfing of small bones, swelling of soft tissue, and loss of digits secondary to gangrene, were not shown. Structural deformities such as pes planus and bunions were at least as likely as not hereditary, biomechanical, or familiar in nature and were less likely than not related to exposure to cold. Based on the above evidence, the Board finds that the Veteran does not have residuals of a cold injury due to service. Although the Veteran complained in service of a right foot injury, for which he is currently service connected, a left foot problem was not reported during either period of active duty. Moreover, no residual of a cold injury was found on VA medical evaluations in January 2005, September 2011, and May 2013. Although the examiner in May 2013 did not have access to the claims files, the June 2013 nexus opinion from a doctor who reviewed all of the records is against the claim because there was no recent medical evidence of residuals of a cold injury, as the foot disabilities found, pes planus and bunions, are not those associated with exposure to cold. Service connection may not be established in the absence of demonstration of current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992), see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement for a current disability is met if a disability has been present at any point during the claim period), see also Romanowski v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013) (holding that a diagnosis close in time prior to the filing of a claim must also be considered when addressing whether there is a current disability). Consequently, entitlement to service connection for residuals of a cold injury of the left foot is not warranted. The testimony and lay statements from the Veteran have been taken into consideration in this decision. Although the Veteran is competent to report his subjective foot problems, the Veteran, who has no medical training, is not competent to diagnose or opine that he has residuals of cold injury of the left foot due to service. Laypersons are not competent to provide evidence in certain medical situations, such as in a case involving the etiology of a cold injury. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims for service connection, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for residuals of a cold injury of the left foot is denied. REMAND The Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the record includes the contention by the Veteran's representative on his behalf in August 2013 that he is unemployable due to his service-connected disabilities. Accordingly, the Veteran should be provided with appropriate notice as to how to substantiate a claim for TDIU. It would be fundamentally unfair to the Veteran to decide a claim which has not been developed and adjudicated by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). In order to comply with precedential Court opinion, this issue, therefore, is remanded for further development. Therefore, the case is remanded for the following actions: 1. The AMC/RO must provide the Veteran VCAA notice related to a TDIU claim. 2. Thereafter, the AMC/RO should schedule the Veteran for an examination to determine the effects of his service-connected disabilities on his ability to secure or follow a substantially gainful occupation. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the requested opinion. Any necessary special studies or tests are to be accomplished. The examiner must provide an opinion as to the following: Whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (which include PTSD at 70 percent, status post fistulotomy at 10 percent, and residuals of a cold injury to the right foot at 0 percent), considered in combination, preclude him from securing and following a substantially gainful occupation consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities or his age. A complete rationale for all opinions must be provided. 3. The AMC/RO will notify the Veteran that he must report for the VA examination and that failure to report may result in the denial of his claim. 38 C.F.R. § 3.655. 4. Following completion of all indicated development, the AMC/RO must adjudicate the claim for entitlement to TDIU, to include consideration of all of the evidence of record. If the benefit sought on appeal remains denied, the Veteran will be provided a Supplemental Statement of the Case, which should include all pertinent law and regulations. The Veteran will then be given an appropriate opportunity to respond thereto. Thereafter, the case must be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter 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 or by the Court 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs