Citation Nr: 1335151 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 07-28 634 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for residuals of a cold injury to the feet, claimed as frozen feet. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This matter come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied reopening a previous claim of entitlement to service connection for bilateral frozen feet. The Veteran subsequently perfected an appeal of this issue to the Board. In July 2008 and July 2009, the Veteran presented testimony at formal hearings before Decision Review Officers at the Indianapolis RO. Transcripts of the hearings have been associated with the Veteran's claims folder. When the case was last before the Board in April 2012, the claim of entitlement to service connection for residuals of a cold injury to the feet was reopened and remanded for additional development. FINDING OF FACT Residuals of a cold injury were not present during active service or for many years after service, and the currently diagnosed peripheral neuropathy of the feet is not etiologically related to active service. CONCLUSION OF LAW Residuals of cold injury to the feet were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Letters dated in August 2007 and November satisfied the duty to notify provisions. The letters also included proper notice to the Veteran regarding the regulations pertinent to the establishment of an effective date and of the disability rating and were sent prior to the initial unfavorable adjudication by the RO. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). VA examinations were conducted in August 2008, February 2010, and April 2012, and a VA opinions was obtained in December 2012. The Veteran has not argued, and the record does not reflect that, when considered together, these examinations or opinions were inadequate. The Board finds that collectively the examinations and opinions were adequate because they were based on an examination of the Veteran, to include discussion of his complaints and symptoms, and contained medical opinions with adequate rationales predicated on a thorough review of the claims file. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. 3.103(c)(2) (2012) requires that the Decision Review Officer (DRO) who conducts a hearing fulfill two duties to comply with the above the regulation. Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) the duty to fully explain the issue or issues on appeal and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the Veteran was assisted at the DRO hearings by an accredited representative from Veterans of Foreign Wars of the United States. During the Veteran's hearings, the DROs and the Veteran's representative asked the Veteran questions to ascertain the extent of any in-service event and/or symptoms. They also asked questions regarding current treatment. The hearings 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 his service connection claim. Although the DROs did not advise the Veteran, during the hearings, of the elements of the claims that were lacking to substantiate a finding of service connection, the Board finds that this omission was harmless because notice of the criteria for a grant of service connection was given to the Veteran, before the hearings, in the August 2007 VCAA letter, and in the statement of the case and the January 2013 supplemental statement of the case. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the DRO hearings. As such, the Board finds that the DRO complied with the duties set forth in 38 C.F.R. 3.103(c)(2), consistent with Bryant, and that any error in notice provided during the Veteran's hearings constitutes harmless error. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its April 2012 remand. In addition to seeking an appropriate VA examination to determine the nature and etiology of any residuals of cold injury to the feet, the April 2012 remand specifically instructed the RO/AMC to obtain any available VA treatment records pertaining to treatment of the Veteran's peripheral neuropathy of the feet. The Veteran's VA treatment records were obtained and are located in the Veteran's Virtual claims file. The Board finds that the RO has complied with the Board's instructions and that together, the April 2012 VA examination report and the December 2012 VA opinion report substantially comply with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Legal Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As discussed more thoroughly below, the Veteran is not diagnosed with a disability which is recognized as a chronic disability in 38 C.F.R. § 3.309(a). In relevant part, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability benefits. 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran testified at the July 2009 hearing that while out in the field, serving in Germany in an armored personnel carrier with no heat, he woke up with frozen feet. He stated that it took two hours before he could get the feeling back in his feet. He stated that he did not go see any doctor at the time because he was just glad to get the feeling back in his feet. He also testified in July 2009 that by around 2004 or 2005 he was determined to have frozen feet. Up until that time, the only problem he claims to have had with his feet is athlete's feet. An October 2005 VA treatment record notes that the Veteran reported that his feet felt cold all the time. He had an EMG done on his feet and legs. The EMG indicated axonal problem with little demyelination. A December 2005 VA neurology consult notes that the Veteran reported trouble with his feet for years. He reported having a frostbite injury in Germany. The impression was axonal peripheral neuropathy in mainly the right leg. The etiology was noted to be uncertain. It was further noted that there was no diabetes or alcohol history and that frostbite could have a long-lasting effect with some worsening, so ANA, B12, folate, and protein electrophoresis were to be checked. A March 2006 VA podiatry note indicates that the Veteran reported having frozen feet in service in Germany. He stated that it took about an hour to warm them enough so he could feel them. It was noted that B12 was normal, folate was normal, ANA was negative, and protein electrophoresis was normal. The Veteran was diagnosed with neuropathy. The examiner explained to the Veteran that neuropathy can occur many years after a cold injury to the feet. A March 2006 VA primary care clinician note indicates that lower extremity arterial Doppler was normal. A July 2006 VA examination report notes that the Veteran reported having a cold injury to his feet during service. There was no alopecia and no hypohidrosis. The diagnosis was tinea pedis. A January 2007 VA podiatry note indicates that the Veteran was seen for numbness, burning, and tingling in the feet. He stated that he had frozen feet in Germany. The assessment was neuropathy possibly secondary to cold injury or chemotherapy. The plan was to have a neurology consult. A January 2007 VA general surgery note indicates that the Veteran was seen for follow-up for status post right hemicolectomy for adenocarcinoma from May 2006. It was noted that he completed all 12 cycles of chemotherapy as of December 2006. It was noted that he reported some neuropathy in his hands and feet and diminished sensation. A March 2007 VA neurology consult notes that the Veteran was seen for evaluation of neuropathy. It was noted that the Veteran had been seen in March 2006 and that all tests, including arterial Doppler had come back normal. Therefore, the Veteran was sent to podiatry but the podiatrist felt that the foot problems may be due to cold injury, possibly worsened by chemotherapy. Examination revealed profound loss of vibratory position, as well as pain, and temperature sensations. The impression was that the neuropathy was most likely due to the cold injury in service. A February 2010 VA examination report notes that the Veteran denied any residuals of the in-service cold injury in Germany. The April 2012 VA examination report notes that the Veteran's neuropathy is less likely than not caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran reported that during service after experiencing stiffness, coldness and numbness in his feet, these symptoms relented after about an hour and he never sought further treatment. It was not until around 2005 that he began noting bilateral foot burning and numbness. The examiner felt that it is doubtful that the Veteran suffered a serious cold injury. He believes his feet might have been red; however, there was no swelling, blisters, palor, or other discoloration, as would be expected with significant frostbite. In addition, the Veteran remained asymptomatic until 2005. The examiner stated that peripheral neuropathy associated with frostbite begins at the time of the cold injury and is limited to the area the frostbite occurred. However, the Veteran's peripheral neuropathy is more diffuse, with EMG findings of an L5 radiculopathy as well. Therefore, it is less likely as not that the Veteran's peripheral neuropathy of the feet, diagnosed in 2005, is related to a cold injury sustained during service. In December 2012, an additional VA medical opinion was obtained. The December 2012 opinion report states that the March 2007 VA neurologist, in stating that there was no evidence of other causes of peripheral neuropathy present other than cold injury, failed to observe that the Veteran had elevated blood glucose readings recorded since 2005 and met the criteria for diabetes mellitus in January 2007. Furthermore, the Veteran was undergoing chemotherapy for his colon cancer beginning in 2006 and this is commonly associated with peripheral neuropathy, even according to the December 26, 2006 VA oncology progress note. NCVs from September 2005, July 2010, and September 2012 were all consistently interpreted as showing distal peripheral neuropathy of the sort that would be characteristic of diabetes mellitus. Moreover, his peripheral nerve sensory examination from May 2012 was consistent with a stocking distribution in his bilateral lower extremities, which would also be expected to occur in patients with diabetes mellitus. Based upon this information, the examiner agreed with the April 2012 VA examiner, and found that the Veteran's peripheral neuropathy is less likely than not due to his cold injury. The examiner added that there are other causes of peripheral neuropathy such as diabetes and chemotherapy, which more satisfactorily explain the Veteran's peripheral neuropathy. The Veteran is competent to testify to his in-service cold weather exposure and the symptoms he has experienced, but that testimony must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The Board finds that the Veteran's testimony that his feet were exposed to the cold in service and he experienced pain and numbness at that time to be credible. However, any statements that he has experienced these symptoms continuously since his cold weather exposure (the December 2005 VA treatment record) is contradicted by his statement at the July 2009 DRO hearing when he said he never had any problems until 2004 or 2005. The Veteran's statements as to continuity of his foot symptomatology after cold weather exposure are therefore not credible. Regardless of the lack of credibility of the lay evidence, the April 2012 VA examiner examined the Veteran and reviewed the record, and the December 2012 VA examiner also reviewed the record and discussed the Veteran's symptoms, and both examiners have found that the Veteran's peripheral neuropathy is not indicative of residuals of cold weather injury. Rather, the April 2012 VA examiner concluded based upon the Veteran's description of his feet at the time of the cold injury, his lack of symptoms since the injury until over 25 years later, and the findings of the EMG suggest that it is less likely as not that the Veteran's peripheral neuropathy is etiologically related to any inservice cold injury. Moreover, the December 2012 VA examiner concluded that diabetes mellitus and chemotherapy are more plausible explanations for the Veteran's peripheral neuropathy. To the extent that the lay pleadings are competent, they are outweighed by the examination findings of the trained health care professionals who conducted the April 2012 VA examination and who provided the December 2012 VA opinion. Although the January 2007 podiatry note indicates that the Veteran's neuropathy is possibly secondary to cold injury or chemotherapy and the March 2007 VA neurology consult notes that the Veteran's neuropathy was most likely due to the cold injury in service, the December 2012 VA examiner indicated that the March 2007 neurologist failed to account for the Veteran's elevated blood glucose readings recorded since 2005 and the fact that the Veteran met the criteria for diabetes mellitus in January 2007. Furthermore, neither the January 2007 VA podiatrist nor the March 2007 VA neurologist acknowledged that the Veteran was undergoing chemotherapy for his colon cancer beginning in 2006 and this is commonly associated with peripheral neuropathy, even according to the December 26, 2006 VA oncology progress note. Additionally, neither the January 2007 VA podiatrist nor the March 2007 VA neurologist recognized that the NCVs from September 2005, July 2010, and September 2012 were all consistently interpreted as showing distal peripheral neuropathy of the sort that would be characteristic of diabetes mellitus. Moreover, neither the January 2007 VA podiatrist nor the March 2007 VA neurologist took into account the Veteran's peripheral nerve sensory examination from May 2012, which was consistent with a stocking distribution in his bilateral lower extremities, and which would also be expected to occur in patients with diabetes mellitus.. As such, the Board finds that the April 2012 and December 2012 medical opinions are more probative than the January 2007 or the March 2007 opinions contained in the VA treatment records. For the reasons stated above, the preponderance of the evidence reflects that the Veteran's peripheral neuropathy of the feet is not etiologically related to his cold injury during service, and he does not have any other disability that is due to cold weather injury in service. The benefit of the doubt doctrine is therefore not for application, and the claim for entitlement to service connection for residuals of cold injury to the feet must be denied. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102 ; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for residuals of cold injury to the feet is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs