Citation Nr: 1642068 Decision Date: 11/01/16 Archive Date: 11/18/16 DOCKET NO. 15-18 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for residuals of a cold injury, to include atherosclerotic vascular disease of the lower extremities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from December 1952 to November 1954. His DD 214 reflects that his military decorations include the Korean Service Medal with one Bronze Service Star, and the National Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) from a May 2013 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran testified at a hearing in Washington, D.C. before the undersigned Veterans Law Judge (VLJ) in August 2016 and a transcript is of record. This appeal was processed using the Veteran's Benefits Management System (VBMS) and, in addition there is a Virtual VA paperless claims electronic file. Accordingly, any future consideration of this appeal should take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran served in Korea during the Korean Conflict in a combat zone and his service treatment records were destroyed in a 1973 fire. 2. The only medical evidence addressing the Veteran's atherosclerotic vascular disease of the lower extremities, which necessitated amputation of the Veteran's right leg above-the-knee, demonstrates that it is as likely as not that the etiology of such disease was the Veteran's inservice frostbite from cold weather injuries. CONCLUSION OF LAW The criteria for service connection for residuals of a cold injury, to include atherosclerotic vascular disease of the lower extremities (and right leg amputation), have been met. 38 U.S.C.A. §§ 1101, 5107, 1154(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA imposes on VA a duty to provide notice of how to substantiate a claim and to assist in evidentiary development. VA's duty to notify was satisfied by a letter in January 2011. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With respect to the duty to assist, the Veteran's VA treatment records and relevant private clinical records have been obtained. As to his service treatment records (STRs), these were destroyed in a fire. The Veteran was informed of this by RO letter of January 23, 2013. The RO determined, in the rating decision on appeal, that the National Archives form that the Veteran submitted showed the conditions then claimed and the unit or organization to which he was assigned but did not contain enough information (e.g., no dates of treatment nor name of hospital or facility treated during service) to submit a request for service treatment records from secondary sources. At the August 2016 Board hearing the Veteran's representative requested that there be no further development and that the case be adjudicated on the current record. See page 32 of the transcript. In fact, it was specified by the representative that there was no request for a VA nexus examination. See page 6 of the transcript. 38 C.F.R. § 3.103(c)(2) requires that a presiding VLJ fully explain the issues and suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Board hearing focused on the elements necessary for claim substantiation and the Veteran was informed of the elements to substantiate a claim for service connection. Also, it has not been alleged that there was any deficiency with respect to the hearing in this case, much less any violation of the duties set forth in 38 C.F.R. § 3.103(c)(2). See Dickens v. McDonald, 814 F.3d 1359 (Fed.Cir. 2016) (the Board is not required to discuss a potential violation of 38 C.F.R. § 3.103(c)(2), as discussed in Bryant v. Shinseki, 23 Vet. App. 488 (2010) unless an appellant raises such issue). While assistance is required, 38 C.F.R. § 3.103(c)(2) does not require that one presiding at a hearing pre-adjudicate a claim. Bryant v. Shinseki, 23 Vet. App. 488, 496 (2010) (per curiam). In light of the foregoing, the Board concludes that there has been full VCAA compliance. Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed.Cir. 2007). Background The Veteran submitted several service personnel records, including an October 5, 1954, Certificate which states that he had entered a combat zone and was exempt from payment of taxes on income as provided by Public Law 814, 81st Congress, Chapter 994, 2d session, for the months of July 1953 thru October 1954. An October 23, 1999, VAOPT record reflects that on examination the pulses in his extremities were 2+, bilaterally. The diagnostic assessment included hypertension, controlled, and hyperlipidemia, controlled. On VA general medical examination in May 2000 the Veteran reported not having had any serious injury or disease during military service. He was known to have had hypertension for the past several years. He was able to walk 2 to 3 miles and climb 2 to 3 flights of stairs. On examination femoral, popliteal, and pedal pulses were all palpable. The relevant diagnoses included hypertension, controlled with medication. An October 17, 2003 VAOPT noted that the Veteran had had back and right leg pain, intermittently, since April 2003. He did not recall any injuries. On examination there was at least 1 to 2+ pitting edema of the lower calf and tibial artery in the right lower extremity. A November 13, 2003, VAOPT reflects a history that the Veteran had stopped smoking 35 years ago. On examination he had no palpable pulses in his lower extremities. A January 8, 2004, VAOPT record shows that on a lower extremity evaluation the impression was severe occlusive disease on the left and moderate occlusive disease on the right. An August 4, 2004, VAOPT record shows that the Veteran's right leg swelling and left calf pain of one year's duration had been felt to be due to nerve root compression, based on an MRI study, and not to be vascular in etiology. However, after an examination the impressions were bilateral aortoiliac disease and left infrapopliteal atherosclerotic disease with "L SFA" involvement. An April 6, 2012 VA vascular surgery consult reflects that he was recently treated by VA for right foot post-procedural rest pain with right superficial femoral artery (SFA) and popliteal stent placement in March 2012. Prior to that, he had a crossing of the right SFA for chronic total occlusion (CTO) with angioplasty of the right SFA and popliteal arteries in November 2011. A September 2012 VAOPT record shows that he had a right femoral to below-knee popliteal bypass with "PTFE" and vein cuff in July 2012. A November 2012 VAOPT shows that while there was initial improvement his right leg pain returned and in September 2012 he had a repeat Angiojet thrombolysis of the graft and right anterior tibial artery angioplasty. Because of re-thrombosis he underwent a repeat Angiojet thrombolysis of the graft and right anterior tibial artery angioplasty several days later. He underwent a right above-the-knee amputation on November 5, 2012. In the Veteran's correspondence in February 2013 he reported that his legs had been hurting since 2005. A VA by-pass on his right leg in July 2012 had been unsuccessful, necessitating amputation of his right leg above the knee. He continued to have infections of the remaining portion of that leg. His VA physician had informed him that the poor circulation could have been caused by exposure to cold during the night time while in Korea. That physician had informed him that he could develop problems in his left leg, just as he had in his right leg. On VA audiology examination on May 15, 2013, it was reported that the Veteran had been a mechanic during service and had served in Korea in a combat zone. Military noise exposure included weapons fire and air raids. A May 2014 VAOPT record shows that in that month he had an angioplasty, stent, and atherectomy of the left leg. Other VA records show that during VA hospitalization in October 2014 the Veteran underwent a left femoral popliteal bypass. A statement received in May 2016 from a VA physician of vascular surgery states that the Veteran had a long standing history of vascular disease. He had been followed and treated since 2011 at VA medical facilities. He had had multiple endovascular and open vascular surgical procedures on both legs, ultimately resulting in a right leg above the knee amputation. Due to his limited history of other risk factors for his vascular disease "it is as likely as not that the proximate cause of [the Veteran's] vascular disease and loss of his right leg was due to microvascular and macrovascular complications suffered from cold exposure hypothermia/frostbite while serving on the front lines in Korea [in] 1953." At the August 2016 Board hearing the Veteran's representative requested that there be no further development and that the case be adjudicated on the current record. See page 32 of the transcript. The Veteran testified that he served in Korea during the Korean Conflict and at times was stationed outdoors in cold weather. Page 8. He underwent this exposure, including sleeping in tents, for 3 or 4 months during the winter. Pages 9 and 12. He had been a mechanic and had to go to different places to pick-up trucks and bring them in for repairs. Page 10. He had also had to perform guard duty at night. Page 11. He reported that he got frostbite of his feet in Korea. Page 14. However he had not sought inservice treatment for frostbite. Page 15. Nevertheless, he had continued to have problems with his circulation after his military service. He had complained of such problems since about 2005, when the problems became "very significant." Page 16. He had undergone amputation of the above-the-knee amputation of the right leg in November 21015. Page 19. His treating VA physician had rendered a written opinion that it was as likely as not that his circulation problems in his lower extremities were due to frostbite because there was an absence of other possible causes. Page 21. The substance of that written opinion was read into the record. Page 22. The Veteran testified that there was a possibility that if his circulation problems in the left leg progressed, that he might have to have amputation of part of that lower extremity. Page 27. Law and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are "medically chronic"), if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word 'chronic'), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). For a chronic disease to be shown during service or in a presumptive period means that it is "well diagnosed beyond question" or "beyond legitimate question." Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, atherosclerotic vascular disease is not deemed a chronic disease under 38 C.F.R. § 3.309(a), although cardiovascular disease is deemed a chronic disease under 38 C.F.R. § 3.309(a). In the case of a disease which is not a chronic disease under 38 C.F.R. § 3.309(a), service connection must be established under 38 C.F.R. § 3.303(a) (and not § 3.303(b)) which requires that the "nexus" requirement be satisfied (whereas, under § 3.303(b) provides for presumptive service connection or service connection by use of continuity of symptomatology. Walker, 708 F.3d 1331 (Fed. Cir. 2013). VA shall accept satisfactory lay or other evidence of service events in combat, if consistent with the circumstances thereof. 38 U.S.C.A. § 1154(b). However, competent evidence of a current disability and of a link between the current disability and service is still required. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 507-13 (1995); see also Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) (38 U.S.C.A. § 1154(b) does not create a statutory presumption of service connection but considerably lightens the burden for claims for a disease or injury allegedly incurred in combat. Generally, it may be used to show what happened during service and not a nexus between an inservice event and current disability. However, in some circumstances the combat provision of 38 U.S.C.A. § 1154(b) may be used "to show [incurrence of chronic or permanent] disability itself [sic] while in service." Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2). However, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See 38 C.F.R. § 3.159(a)(1). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Any competent lay evidence must be weighed to make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009). VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) ("[E]vidence of a prolonged period without medical complaint can be considered") and Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (taking into account the lack of treatment or complaints of the condition for an extensive period of time); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (more probative weight to VA opinions which relied, inter alia, on a record showing disability symptoms did not begin until decades after service). Moreover, consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both. Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements opposing consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.Cir. 2001). Analysis In this case the Veteran's STRs are not available, having been destroyed in a fire. Where the STRs are absent or incomplete, the obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). But, this does not lower the threshold for an allowance of a claim, for example where the evidence almost but not quite reaches the positive-negative balance. In other words, the legal standard for proving a claim is not lowered; rather, the obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, the absence of some of the SMRs in a fire does not create an adverse-presumption rule. Cromer v. Nicholson, 19 Vet. App. 215 (2005). On the other hand, the Veteran conceded at the Board hearing that he had never sought inservice treatment for frostbite and, so, the absence of the STRs which were destroyed in a fire has little impact on the outcome. With respect to the contention as to the application of laws and regulations governing claims alleged to have been incurred or aggravated by or during inservice combat, the Board acknowledges that the Veteran served in a combat theatre, even though he has not alleged and the evidence does not show direct participation in combat and he received no decorations indicative of having had an active combat role. Also, the Board concedes that he was exposed to cold weather in Korea because his testimony to this effect is consistent with the known cold weather which occurs in Korea during the winter and there is no evidence refuting or contradicting his credible testimony. The Veteran's credible testimony is to the effect that he had continuous problems in his lower extremities after military service. He attributes this to inservice frostbite. However, he is not competent to render an opinion as to the etiology of such postservice symptoms, which may be of multiple possible etiologies as suggested by a VAOPT record noting that at one point radicular symptomatology stemming from lumbosacral pathology was suspected. On the other hand, the Veteran's treating VA vascular surgeon is competent to render such an opinion. Indeed, that physician's opinion was that it was as likely as not that the Veteran's atherosclerotic vascular disease of the lower extremities, causing microvascular and macrovascular complications, was due to cold injuries during the Veteran's military service in Korea. There is no contrary, i.e., unfavorable, medical opinion of record. Accordingly, with the favorable resolution of doubt in favor of the Veteran the Board finds that service connection for residuals of a cold injury, to include atherosclerotic vascular disease of the lower extremities, is warranted. ORDER Service connection for residuals of a cold injury, to include atherosclerotic vascular disease of the lower extremities (and right leg amputation), is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs