Citation Nr: 1343336 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 11-20 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for residuals of cold injury to the feet. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from October 1948 to November 1952, to include service in Korea. The Veteran was awarded a Purple Heart Medal for his period of active service. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the case was subsequently returned to the VA RO in Montgomery, Alabama. In connection with this appeal, the Veteran and his spouse testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in July 2013 and accepted such hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing is associated with the claims file. This case was previously before the Board in September 2013, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). FINDING OF FACT The Veteran has not been diagnosed with residuals of cold injury to the feet during the pendency of this claim. CONCLUSION OF LAW Residuals of cold injury to the feet were not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2011); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in February 2009 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The February 2009 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) are on file, VA Medical Center treatment notes have been obtained, and the Veteran has been afforded appropriate VA examination. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that he has residuals of cold injury to his feet as a result of being exposed to severe cold weather while serving in Korea. A review of the record shows that the Veteran was stationed in Korea during the winter months of 1950-1951. It is well-documented that the winter months in question were productive of very severe cold weather and cold injuries to service members serving in Korea at that time are also well-documented. Therefore, the Board concedes the Veteran's exposure to extreme cold weather during active service. A review of the Veteran's STRs shows that in July 1952, the Veteran was seen in medical for complaints of blistering on his right heel. At that time, the Veteran was referred to dermatology and it was noted that the right foot complaints might be related to "old frostbite." There is no documentation of further treatment for residuals of cold injury during active service of record. In October 1952, the Veteran was afforded a separation examination. There is no indication from the examination report that the Veteran reported foot problems at that time and the Veteran's feet and lower extremities were found to be clinically normal upon examination at the time of his separation. At his July 2013 Board hearing, the Veteran and his spouse both testified that the Veteran currently experienced bilateral foot pain, intermittent discoloration of his feet, and some buildup under his toenails. In October 2013, the Veteran was afforded a VA cold injury protocol examination. At that time, the Veteran reported that he was affected by frostbite to his feet while serving in Korea. He reported that he never left the line to receive medical treatment at that time and simply treated his frostbite by changing his socks daily. Based on the history provided by the Veteran, a review of the record, and an examination of the Veteran, the examiner found that there were no significant residuals of any cold injury found on examination. The examiner opined that the Veteran did not have residuals of cold injury to his feet that were related to his active service. In this regard, the examiner noted that there was no evidence on physical examination of any significant foot/lower leg disorders that could be construed as being caused by frostbite injury. Rather, the examiner noted that the changes noted in the examination report were most likely age and medication related. The Board notes that the Veteran is competent to report that he first experienced symptoms of a foot disability and that the symptoms have continued since service; and both the Veteran and his wife are competent to report observable symptomatology, such as discoloration of the Veteran's feet. However, as laypersons, without medical training, they are not competent to diagnose the Veteran with residuals of cold injury to his feet or to provide an opinion that his current symptoms are related to his cold injury during active service as these questions fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for Veterans Claims (Court) has held that in order for a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, the Board notes that while there is evidence that the Veteran sustained a cold injury to his feet during active service, there is no competent evidence of record indicating that the Veteran has a current diagnosis of residuals of the in-service cold injury to his feet. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for residuals of cold injury to the feet is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for residuals of cold injury to the feet is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs