Citation Nr: 1605984 Decision Date: 02/17/16 Archive Date: 03/01/16 DOCKET NO. 08-34 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for cold injury residuals. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1963 to October 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. The Veteran testified at a hearing before the Board in May 2011. A copy of the hearing transcript has been included in the claims file. In January 2016, the Veteran waived his right to a new hearing before the undersigned Veterans Law Judge. The Board remanded the case in September 2014 for additional development in the form of a VA medical examination. The medical examination was conducted in December 2014 and an adequate medical opinion was issued; thus, the Board is satisfied that there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's peripheral vascular disease and symptoms of claudication and numbness are not etiologically-related to the Veteran's service. CONCLUSION OF LAW The criteria for service connection for residuals of a frostbite injury have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants. Upon receipt of a complete or substantially complete application, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). In addition, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159(b). The Board finds that the VCAA notice requirements have been satisfied regarding the Veteran's claim. In January 2006, the RO mailed a pre-adjudicatory letter to the Veteran that outlined the evidence required to substantiate his claim, and the Veteran's and VA's respective responsibilities in obtaining that evidence. Moreover, the letter requested that the Veteran provide any evidence in his possession, including relevant treatment records and supporting lay statements. Thus, the Veteran received all required notice. VA also has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim, which includes providing an adequate medical examination or opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations, and describes the disability in sufficient detail to enable the Board's evaluation to be fully informed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that VA has satisfied its duty to assist regarding the Veteran's claim for cold injury residuals. The claims file contains the Veteran's service treatment records, VA medical treatment evidence, and lay evidence. The Veteran was also afforded VA compensation and pension examinations in August 2011 and December 2014 to assist in determining the Veteran's claims. The August 2011 opinion was found to be inadequate by the Board in September 2014 and remanded for an addendum opinion. The December 2014 opinion is adequate because it was performed by a medical professional, satisfied the remand directives, and was based on a review of the Veteran's record, history, and symptomatology. Accordingly, VA's duty to assist has been met. Additionally the Veteran provided testimony at a May 2011 hearing before the Board. During a hearing for a claim on appeal, a Veterans Law Judge has a duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In the present case, the Veterans Law Judge clearly set forth the issues to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information as to the dates and locations of treatment when appropriate. The hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim. The Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant. Legal Authority for Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval or air service, or for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a), (d). Establishing a claim for service connection generally requires medical or lay evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Washington v. Nicholson, 19 Vet. App. 362, 367 (2005). Service connection may also be proven by presumption. Where the claimed condition is a "chronic disease" pursuant to 38 C.F.R. § 3.309(a), the presumptive service connection provisions of 38 C.F.R. § 3.303(b) will apply. Cold injury residuals are not listed as a chronic disease and the presumptive service connection provisions therefore do not apply. Before deciding a claim, the Board is required to evaluate all relevant evidence of the record on appeal, including lay and medical evidence. See 38 U.S.C.A. § 7104(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Lay evidence may be competent and sufficient to establish a claim for service connection. Specifically, lay evidence may be 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, and 1376-77 (Fed. Cir. 2007). Moreover, a layperson is competent to report the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that a veteran is competent to report on that of which he or she has personal knowledge). The Board must then determine whether the evidence is credible or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In evaluating credibility, the Board may consider, among other things, interest, bias, and internal inconsistency. Caluza v. Brown, 7 Vet. App. 498 (1995). After determining the competency and credibility of the relevant evidence, the Board must then weigh its probative value. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for Cold Injury Residuals The Veteran filed a claim for cold injury residuals in December 2005, initially characterized as frostbite. He contends that he was exposed to cold weather various times throughout his year-long service in Korea. During one operation, the Veteran was reportedly outside in weather that was 32 degrees below freezing for approximately two weeks. As a result, he began experiencing numbness and poor circulation in his feet. The Veteran contended during the May 2011 Board hearing that he was not treated for these symptoms during service because it did not impair him at that time. He did not receive treatment post-service either, due to the lack of impairment, although he contends that the bottom of his feet became discolored. Currently, he has peripheral vascular disease (PVD) and experiences claudication, numbness, and muscle fatigue after walking. As noted above, the Veteran's service treatment records do not contain complaints related to cold exposure, and the Veteran's separation examination indicates that the Veteran's feet and lower extremities were normal upon separation from service. During the Board hearing, the Veteran contended that he had private medical records relevant to his claim. The Board left the record open for these records to be associated with the file. At the time of the August 2011 remand, these medical records had not been submitted, and the Board ordered in its remand that these records be obtained. Consequently, the RO mailed the Veteran a letter requesting that he return VA Form 21-4142, Authorization and Consent to Release Information, for each VA and private provider who treated him for his claimed condition. The Veteran did not provide the necessary information or consent, and in its September 2014 remand, the Board ordered that another attempt should be made to obtain these records. The RO mailed the Veteran another letter requesting that the Veteran submit a release form for any provider who treated his claimed conditions. The Veteran returned an authorization consent form authorizing VA to obtain his records from the VAMC in Decatur, Georgia, but did not list any private providers nor provide them himself. The Board is thus satisfied that all necessary and appropriate attempts have been made to obtain all relevant medical records for this case, and will proceed on the evidence before the Board. The Veteran's VA medical records associated with the file show that the Veteran has been diagnosed with PVD, entered into the VAMC system around January 2003, and that from September 2004 through October 2014, he experienced fatigue and weakness in his legs after walking short distances, intermittent claudication, numbness in his feet, and an inability to move the toes on his right foot. The records further show that he has a history of tobacco abuse, diabetes mellitus, and hypertension. It was also noted on the records from several different visits that his hypertension and diabetes mellitus were uncontrolled. The Veteran was afforded a VA examination in August 2011, at which time he reported that he had not been treated for frostbite during service because his superiors threatened disciplinary action for any soldiers who did. He further reported that he was "pretty healthy" until he started experiencing pain in 2001. The examiner noted that the Veteran was diagnosed with diabetes mellitus in September 2001. The Veteran reported that he felt intermittent mild pain in the tips of his toes that worsened in cold weather, as well as moderate tingling and joint stiffness in both feet and weakness in his right leg. Both feet and legs swelled and his legs cramped after use. There was abnormal dark color present on both of his feet. The examiner's impressions included bilateral peripheral artery disease (or PVD) with claudication, which was more severe in the right, as well as peripheral neuropathy and peripheral edema. She concluded that the Veteran's claimed condition was less likely than not incurred in or caused by service because there was no record of cold exposure or treatment for such in service. Instead, she opined that the Veteran's claudication and neuropathy were related to his co-morbid conditions, PVD and diabetes. The Board remanded this matter for an addendum opinion to address whether the Veteran's PVD was related to service and the case was returned to the previous examiner. She concluded that the claimed condition was less likely than not caused by service because his PVD, peripheral neuropathy or symptoms of pain, numbness, and claudication, are not consistent with cold weather injury. Instead, she stated that peripheral neuropathy is a well-known complication of diabetes to the hyperglycemic effect leading to microvascular damage to lining of the small arteries. She further noted that although "medical literatures do show that frostbite can be associated with late sequelae to affected regions to include altered vasomotor function, neuropathies, [and] joint articular cartilage changes . . . the key word is affected area. Veteran has a diffuse vascular disease not limited to peripheral." She then related the Veteran's claudication to his PVD due to a temporary inadequate supply of oxygen to the muscles of the leg. The examiner opined that the Veteran's "history of tobacco use disorder, diabetes mellitus, hypertension, polysubstance abuse, and hypercholesterolemia" are the true etiology of his conditions. The lay and medical evidence weigh against a grant of service connection. The Board accords great weight to the December 2014 VA opinion because the examiner demonstrated a thorough knowledge of the Veteran's medical history, accounted for the Veteran's lay statements, issued an opinion supported by a detailed rationale, and provided alternative etiologies. The Board finds the 2014 VA examiner's opinion that the Veteran's PVD is not related to service, and that his claudication and numbness are related to his PVD and other conditions, to be highly probative. This is supported by the lack of treatment evidence in the Veteran's service and immediate post-service medical records for a cold weather injury or residuals. The only evidence supporting the Veteran's claim are his lay assertions that he has experienced numbness and foot discoloration since service and that his current are related conditions to service. The Veteran is not competent, however, to offer an opinion as to the etiology of his of PVD. See Jandreau, 492 F.3d 1372, 1377 n.4. These are questions that relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship and is of the type that the courts have found to be beyond the competence of lay witnesses. See id. ("Sometimes 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."). While the Veteran is competent to report symptoms he experiences at any time, such as symptoms of numbness and foot discoloration, the Board finds that VA examiner's nexus opinion and alternative etiologies to be more probative than these statements. Thus, the weight of the competent evidence does not show that the Veteran's current conditions are related to service. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for residuals of a cold weather injury, and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for cold weather injury residuals is denied. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs