Citation Nr: 1800669 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-11 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for residuals of cold injuries to the bilateral upper extremities. 2. Entitlement to service connection for residuals of cold injuries to the bilateral lower extremities. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran had active duty service from February 1951 to August 1956. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA), in Portland, Oregon, which denied claims for service connection for cold injury, right upper extremity, cold injury, left upper extremity, cold injury, right lower extremity, and cold injury, left lower extremity. In October 2017, the Veteran was afforded a hearing before Matthew W. Blackwelder, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102(b) (2012). FINDING OF FACT The Veteran has residuals of cold injuries of the bilateral upper and lower extremities that are related to his service. CONCLUSION OF LAW Residuals of cold injuries of the bilateral upper extremities, and bilateral lower extremities, were caused by the Veteran's service. 38 U.S.C. §§ 1110, 1131, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that he sustained frostbite to his bilateral upper and lower extremities during service in Korea in the winter of 1951, and that he was treated in the field. He has testified that in Korea in December of 1951, he and about 14 other Marines had to man an outpost for about two days in subzero weather wearing nothing but summer gear. Some of the men contracted gangrene and had to be evacuated to a hospital ship, and two others allegedly froze to death. The Veteran reported seeking treatment at a battalion aid station and being told that if he had waited two more hours, he would have had to have his toes amputated. He was told to seek additional medical treatment, but he refused so that he could return to his unit. He stated that two of the men in his unit eventually had to have amputations. He reported current symptoms that include numbness, changing color, cold sensitivity, and a lack of circulation. See transcript of Veteran's hearing, held in October 2017; Veteran's appeal (VA Form 9), received in March 2016; Veteran's notice of disagreement (VA Form 21-0958), received in February 2015. In February 2014, the Veteran filed his claims. In December 2014, the RO denied the claims. The Veteran has appealed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303 (d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Id. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)). A grant of service connection under 38 C.F.R. § 3.303 (b) does not require proof of the nexus element; it is presumed. Id. The law provides that, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence of an injury incurred in service shall be accepted as sufficient proof of service incurrence of the injury if the evidence is consistent with circumstances of service and notwithstanding that there is no official record of service incurrence of the injury. 38 U.S.C. § 1154 (b) (2014); see also VAOPGCPREC 12-99, 65 Fed. Reg. 6256-6258 (2000). The Veteran's personnel records, show that he served in Korea with the Fifth Regiment, First Marine Division, and that his awards include the Korean Service Medal with three stars, and the Korean PUC (Presidential Unit Citation). The Veteran's service treatment records show that in April 1952, he was treated for an infection of his feet, treated with soaks and potassium permanganate. There is also a notation his treatment ran between January and July of 1952. In August 1956, the Veteran filed a claim for service connection for foot fungus, and a shrapnel injury to his head. In April 1957, the RO granted the claim for a shrapnel injury, and denied the claim for the feet. As for the post-service medical evidence, a VA examination report, dated in April 1957, notes staining of the Veteran's feet, hands, and wrists, apparently due to his inservice treatment with potassium permanganate. He was also noted to have scattered lesions on his wrists and the lower 1/3 of his forearms. There was a diagnosis of dermatophytosis pedis and of the hands, by history only. A report from Samaritan Health Services (SHS), dated in October 2013, notes a history of frostbite in the Korean War with persistent associated vascular problems in the feet. A VA cold injury residuals disability benefits questionnaire (DBQ), dated in December 2014, shows that the examiner indicated that the Veteran's clams file had been reviewed. The DBQ notes the following: the Veteran reported severe frostbite during service in Korea. Following separation from service, he has had cold feet and fingers, which turn white in the cold and are painful. He also has some numbness in his hands and feet. The examiner concluded that there was insufficient evidence for a diagnosis of a cold injury to the hands and feet, and that his cold sensitivity is less likely as not incurred in or caused by service. The examiner explained that there were no related complaints in a 1956 application to VA for disability benefits, and no corroborating evidence of his complaints. The Board finds that service connection is warranted for residuals of cold injuries of the bilateral upper and lower extremities. As an initial matter, participation in combat is established and the Veteran is entitled to the presumptions at 38 U.S.C. § 1154 (b). His claimed exposure to extreme cold during service in Korea is consistent with the circumstances, conditions, and hardships of his service, and is credible. Id. Although the December 2014 VA opinion weighs against the claim, the examiner indicated that this opinion was based in part on a lack of relevant complaints in the Veteran's service treatment records. However, the United States Court of Appeals for Veterans Claims ("Court") has held that a medical examination is inadequate where the examiner impermissibly ignores the appellant's lay assertions regarding the onset of symptoms or injury during service, and instead relied on the absence of evidence in the service medical records to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran's assertions have been found to be credible, and given the Court's holding in Dalton, it appears that the rationale for the opinion in the December 2014 DBQ is inadequate. Id. To the extent that the VA examiner stated that there were no "related complaints" made in association with the Veteran's claim in 1956, the examiner failed to discuss the findings in the associated April 1957 VA examination report, which noted staining and other skin symptoms of the Veteran's upper and lower extremities. In this regard, there is no basis to find that the in-service evidence of treatment for what was characterized as "infection" of the Veteran's feet with potassium permanganate, and the post-service findings indicating such treatment of the Veteran's upper and lower extremities (i.e., staining), is dispositive of the existence of frostbite. Finally, the Board notes that the December 2014 VA examiner failed to discuss the Veteran's history of frostbite in the Korean War with persistent associated vascular problems, as noted in the October 2013 SHS report. See Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (holding that the Board may not simply adopt a medical examiner's opinion that fails to discuss favorable evidence of record); Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). There is no other opinion of record that weighs against the claim. The Board therefore finds that the evidence is at least in equipoise, and that affording the Veteran the benefit of all doubt, that service connection for residuals of cold injuries of the bilateral upper and lower extremities is warranted. As the Board has granted the claims in full, any failure of VA in its duty to assist could be no more than harmless error, and the Veterans Claims Assistance Act of 2000 need not be further discussed. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for residuals of cold injuries of the bilateral upper and lower extremities is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs