Citation Nr: 1336351 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 13-11 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for bilateral foot neuropathy, claimed as due to a cold weather injury. REPRESENTATION Appellant represented by: J. Myers Morton, Attorney ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1959 to November 1962, including service in Korea from June 1960 to June 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. The Board notes that in addition to the paper claims file there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they do not contain any additional evidence relevant to the issue on appeal. The Board further notes that in November 2012 the Veteran submitted a substantive appeal (VA Form 9) prior to receiving a Statement of the Case. In this substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge (VLJ). After the RO sent him the Statement of the Case, in April 2013, the Veteran submitted a new substantive appeal. In this subsequent substantive appeal, however, the Veteran specifically stated he did not want a Board hearing. Moreover, the attorney representing the Veteran has not requested a hearing since. Therefore, the Board deems this request withdrawn and will analyze the case based on the evidence of record. See 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. Bilateral foot neuropathy was not present in service or for years after service. 2. The most probative evidence fails to link the Veteran's bilateral foot neuropathy to service, including to any cold exposure occurring therein. CONCLUSION OF LAW The criteria for service connection for bilateral foot neuropathy, claimed as due to a cold weather injury have not been met. 38 U.S.C.A. §§ 1110, 1113, 5103A, 5103, 5107(b), 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159(b), 3.303, 20.704(d) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) of 2000 requires VA to provide notification with respect to establishing entitlement to benefits and to assist with development of the evidence. 38 U.S.C.A. §§ 5103A, 5103; 38 C.F.R. § 3.159(b). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative of any information, and medical or lay evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini, supra, at 120-21. In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 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: (1) veteran status; (2) existence of a disability; (3) connection, or nexus, between the veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. In this case, VA satisfied its notice requirements in a May 2011 letter, which explained the evidence the Veteran was responsible for obtaining and the evidence VA would obtain on his behalf, the criteria for establishing service connection, and the method by which VA determines disability ratings and effective dates. VA also fulfilled its duty to assist when it obtained the Veteran's Service Treatment Records (STRs), and post-service VA and private treatment records. These records are associated with his claims file, and neither the Veteran nor his representative has identified any relevant, available treatment records that have not been obtained. The Veteran was also provided with a relevant VA examination to address the etiology of his claimed cold weather injury residuals. The Board finds that the VA examination and addendum are sufficient for adjudicatory purposes because they reflect that the examiner reviewed the claims file, performed a physical examination of the Veteran and provided an opinion supported by a sufficient rationale. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain the evidence necessary to substantiate the Veteran's claim. As VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. First, it must assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. Second, it must consider whether the medical expert provided a fully articulated opinion. Third and finally, the Board must consider whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra, at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit , citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Except as otherwise provided by law, a veteran has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence of record be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file actually shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran alleges that he was exposed to temperatures of 20 to 40 degrees below zero, for a prolonged period-of approximately four hours-during the night, when he was performing his guard duties in Korea. He argues that his feet became numb, condition which continues to this day, and that currently his feet remain cold even during the summer season, and that his feet sweat no matter how cold they are. The Veteran argues that there was snow on the ground but his clothes could not keep the wind out. As a result, his feet froze completely. His feet looked white and did not thaw until the next day. When his feet thawed, they burned like fire, tingled, stung and hurt badly. His limbs were so cold and hurting that he did not sleep for the rest of the night. The Veteran's spouse stated that the Veteran does not have feeling in his feet or toes and that his feet are chronically cold to the touch. In this case, the first element of service connection, which is the existence of a current disability, is met because the February 2011 private opinion and the August 2012 VA examination establish that the Veteran has a current disability, bilateral foot neuropathy. Although the Veteran has a current disability, however, entitlement to service connection is not warranted because the Veteran does not meet the second and third elements of service connection, as explained below. 38 C.F.R. 3.303(a); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that the second element of service connection, namely an in-service injury or disease, is not met because the record does not establish the Veteran suffered the claimed in-service cold weather injury. The Veteran's STRs are negative for complaints of or treatment for a cold weather injury and the earliest documented diagnosis of neuropathy is many years after service. A single entry in October 1960 reveals the Veteran had callus formation on the sole of his right foot. Similarly, the Veteran's separation examination is silent as to any injuries to his feet due to the cold. Although the Veteran is competent to report it to be cold in Korea, that his feet were frozen, and he experienced on-going symptoms since that time, the Board does not consider this history to be credible. As already stated, contrary to his current allegations of an in-service cold weather injury, the Veteran's STRs do not contain any complaint of or treatment for cold injuries. The Veteran obtained treatment for multiple ailments during service and his STRs reflect such treatment, establishing a pattern that he sought treatment or mentioned his in-service ailments. Since the service records fail to document the injury he now reports, it is reasonable to infer he had no such injury. Indeed, the injury he now reports is so significant (that his feet froze) it is all but inconceivable that it would not be mentioned in service treatment records. In line with this, his separation examination was normal, on his separation Medical History Report, he indicated he had no "foot trouble" or any other condition related to his current symptoms, and he denied he had any other illness or injury, other than what he had already reported on the form. In fact, he stated his health was "good." All this contradicts his current assertion he sustained a frozen foot injury in service, with chronic symptoms since. In this regard, the Board acknowledges the statement from the Veteran's wife the Veteran is unable to feel his fingers, hands, feet and toes and that his feet are ice-cold, no matter the season. This is not probative, however, since it speaks to current conditions. It does not address what happened in service. In view of the foregoing, the Board concludes the Veteran did not sustain an in-service cold weather injury of his feet as he has contended, with chronic ongoing symptoms since the injury. Furthermore, even if the Board were to find that the Veteran had an in-service injury, which here the Board does not, the Veteran still lacks a positive nexus linking his current neuropathy to his in-service cold weather injury, thereby also failing to meet the third and last element of direct service connection. For his part, the Veteran, as a lay person, is not competent to relate his current symptoms to his in-service exposure to cold temperatures because this is a medically complex diagnosis and a lay person is not competent to testify regarding medically complex issues. See Jandreau, supra, at 1376-77. The Veteran does not have medical training to be able to make such determinations. Nor is he reporting a contemporaneous medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As such, the Veteran's statements with regard to the nexus element have no probative value. In support of his claim, the Veteran did provide a treatment record from his private physician, dated February 2011. The physician diagnosed the Veteran with bilateral neuropathy, secondary to diabetes, but speculated that the Veteran's exposure to cold in Korea could be a contributing factor to his neuropathic pain and cold feet. The physician opined that the Veteran's loss of feeling in the feet was not a circulatory problem because all of the Veteran's circulatory findings were normal, but he also could not definitively link the Veteran's neuropathy to service. Later, the same private physician opined in April 2012 that, It is highly plausible in my professional opinion it is quite possibly due to his exposure to the extreme cold with potential frostbite or frostnip that has led to the painful neuropathy and neuritic pain in his feet. Thereafter, the Veteran underwent a VA examination in August 2012 where the VA examiner found that the Veteran's disability was less likely than not incurred in or caused by the claimed in-service injury. The examiner's rationale was that the incident of cold exposure as described by the Veteran was not severe or prolonged enough to cause his current neuropathy. Moreover, the Veteran's anatomic distribution of current neuropathy changes are not in the same described anatomic location as his claimed cold injury. The examiner noted that the Veteran has had diabetes mellitus since 1996, and this is most likely the etiology of the current neuropathy symptoms in his feet. Similarly, in an addendum opinion from March 2013, the examiner reviewed the Veteran's private medical opinions, mentioned above, but determined that the private physician's statements, "'highly plausible'" and "'quite possibly'" were too equivocal to change her previous opinion. The examiner restated the opinion that the Veteran's peripheral neuropathy is less likely than not due to cold exposure in 1961 and most likely due to his diabetes mellitus. The Board finds the private physician's report inadequate because it does not state unequivocally that the Veteran's disability is at least as likely as not related to his in-service injury. Instead, the physician merely speculated that the Veteran's current neuropathy is "highly plausible" and "quite possibly" related to service. On the other hand, the Board finds the August 2012 VA examination adequate because the examiner reviewed the Veteran's claims file, including his STRs, conducted a physical examination of the Veteran, and provided a nexus opinion as to whether the Veteran's disability is at least as likely as not related to his in-service injury. The examiner also supported this opinion with a comprehensive rationale. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For this reason, the Board assigns more probative value to the VA examiner's report than to the Veteran's private physician's opinion. For these reasons, the Board concludes that the Veteran's current neuropathy is due to his diabetes, as described by his own physician and the VA examiner, and not related to service. Given the evidence of record, the Board finds that service connection for bilateral foot neuropathy, claimed as due to a cold weather injury, is not warranted. In reaching this decision, the Board has also considered the doctrine of reasonable doubt. As the evidence of record, however, weighs against the claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral foot neuropathy, claimed as due to a cold weather injury, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs