Citation Nr: 1334829 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-09 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for residuals of frostbite of the hands. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from August 1971 to August 1975, four months and four days of active service between August 1975 and July 1976, and from July 1976 to December 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has or has had any residuals of frostbite of the hands during the appellate term. CONCLUSION OF LAW Residuals of frostbite of the hands were not incurred in or aggravated by service. 38 U.S.C.A. §§ 101, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.1, 3.6, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2009 and May 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In the July 2009 letter, VA notified the appellant of how VA determines the disability rating and effective date. The claim was most recently readjudicated in a February 2011 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The RO obtained the service treatment records and afforded the appellant a VA examination. The RO also obtained records from the Social Security Administration. The Veteran submitted statements from private doctors. The Board notes that the VA examination provides sufficient clinical findings so as to allow the Board to address whether the claimant has residuals of frostbite of the hands. Therefore, the Board finds that this examination is adequate on which to base a decision. In an April 2011 statement of accredited representative in appealed case (in lieu of VA Form 646) and in an August 2013 appellant's brief, the representative noted that VA had determined that treatment records from the Altus Air Force Base in Oklahoma for treatment from February to March 1976 that were later supposedly transferred to Travis Air Force Base were unavailable. This assertion is based on a December 2010 VA memorandum, the subject of which is formal finding on the unavailability of clinical records. These records, however, were located and are in the claims file. In September 2010, the service department submitted all inpatient clinical records from the Altus Air Force Base for the period from February to March 1976. The service department indicated that there were no inpatient clinical records found from the Travis Air Force Base for the period from February to March 1976. Nonetheless, the Veteran has not alleged that he was treated at the Travis Air Force Base. In a June 2010 statement, he indicated that he was treated at Altus Air Force Base, but that it was possible that his records were transferred to the Travis Air Force Base. In light of the above, the weight of the evidence shows that there are no missing clinical records from a hospitalization at the Altus Air Force Base during the period from February to March 1976. Governing law and regulations Service connection may be established for a disability resulting from (1) a disease or injury incurred in or aggravated by active duty or active duty for training, or (2) an injury incurred in inactive duty training. See 38 U.S.C.A. §§ 101, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6 (2013); see also Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Service connection may also be warranted 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). Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Organic diseases of the nervous system shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). 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. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis The Board has reviewed all of the evidence of record, to include statements from private doctor, service treatment records, and a VA examination report. These records do not show that the Veteran currently has, or has had residuals of frostbite of the hands since he filed his claim in June 2009. In an April 2011 statement of accredited representative in appealed case (in lieu of VA Form 646) and in an August 2013 appellant's brief, the representative noted that in July 1972 the Veteran was treated for second-degree burns to his right index and middle fingers. The appellant, however, is not alleging that he had frostbite in 1972, or that he has disability related to those burns. Instead, in a June 2010 statement, he said that he was treated at Altus Air Force Base between February and March 1976 for frostbite. In a March 2010 statement, the claimant said that he believed that the diagnoses during the hospitalization were hyperthermia, frostbite, and pneumonia. In mid-February 1976, the Veteran complained of stomach pain and nausea and the impression was an upper respiratory infection. By March 2, 1976, the impression was acute maxillary sinusitis versus viremia. The claimant was hospitalized at Altus Air Force Base and discharged on March 5, 1976, with a diagnosis of flu-like illness. At a June 1976 annual flying examination, the Veteran denied any history of neuritis or paralysis and the neurologic evaluation was normal. While both private doctors diagnosed peripheral neuropathy, neither doctor indicated that the peripheral neuropathy is a residual of in-service frostbite. In fact, Dr. Biewen in an October 2009 statement indicated that the Veteran had diabetic peripheral neuropathy. At the October 2009 VA examination, the Veteran reported that he had numbness most of the time in the small and ring fingers of his left hand. He reported that occasionally dropped things and had difficulty with fine manipulation in both hands. He denied any pain in his hands. He also indicated that his hand symptomatology did not wake him up at night and that his hands do not "fall asleep" when driving, talking on a phone, or holding his hands overhead. The appellant reported that he experienced pain when he got cold and that he wore gloves when other people did not. Physical examination of the right hand revealed that there were no gaps in range of motion testing of the fingers and the strength for pushing, pulling, twisting, gripping, and pinching was 5/5. Dexterity was normal for twisting, probing, writing, touching, and expression. As for sensation, soft touch, monofilament testing, and position sensation were normal for all five fingers in the right hand. Physical examination of the left hand revealed that there were no gaps in range of motion testing of the fingers and the strength for pushing, pulling, twisting, gripping, and pinching was 5/5. Dexterity was normal for twisting, probing, writing, touching, and expression. As for sensation, soft touch was decreased over the volar aspects of the small and ring fingers, but positiosensation wasre normal for all five fingers in the left hand. The examiner indicated that there was no diagnosis of residuals of frostbite of the hands because although there were symptoms, there was no current clinical objective evidence of disease or pathology. The examiner also noted that there was no evidence of frostbite during service. The examiner reiterated that the Veteran did not have any current clinical findings consistent with frostbite of the hands. Lay 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). The Board notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the existence of residuals of frostbite falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Moreover, the Veteran is not reporting a contemporaneous or later diagnosis of residuals of frostbite of the hands since there is no medical evidence of a diagnosis of residuals of frostbite of the hands since he filed his claim in June 2009. As for continuity of neurological symptomatology, numbness and pain when cold, the Veteran is competent to report this symptomatology and the Board finds him credible with regard to experiencing neurological symptomatology because there is medical evidence that soft touch was decreased over the volar aspects of the left small and ring fingers. That said, supporting medical evidence is required because a claim based on continuity of symptomatology can only be granted if there must be competent medical evidence of a current disorder for which there is continuity of symptomatology. As noted above, the preponderance of the competent medical evidence preponderates against finding that the Veteran has or has had residuals of frostbite of the hands. The Board ultimately places far more weight on the competent VA examiner's conclusion that there were no current clinical findings consistent with frostbite than on the Veteran's lay report of symptoms. Moreover, numbness and pain when cold, however, are symptoms, not a diagnosed disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Again, the Board recognizes that there is a current diagnosis of peripheral neuropathy. However, this disability has been attributed by a treating physician to the Veteran's nonservice-connected diabetes, and there is no contrary medical evidence suggesting the disability is related to in-service frostbite. In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that the Veteran has or has had residuals of frostbite of the hands during the appellate term. Therefore, the preponderance of the evidence is against the claim, and it is denied. ORDER Entitlement to service connection for residuals of frostbite of the hands is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs