Citation Nr: 1801121 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 14-07 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of frostbite of the left hand. 2. Entitlement to service connection for an acquired psychiatric disorder variously diagnosed, to include post-traumatic stress disorder (PTSD), depression and anxiety disorder. REPRESENTATION The Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1992 to June 1995. These matters come before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a March 2017 videoconference hearing before the undersigned Veterans Law Judge. A transcript has been associated with the record. The Board has re-characterized the Veteran's claims for PTSD, depression and anxiety disorder more broadly and in combination in order to clarify the nature of the benefit sought and ensure complete consideration of the claims. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files. The issue of entitlement to service connection for an acquired psychiatric disorder variously diagnosed, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT There is no competent and credible evidence showing that the Veteran had a disability of residuals of frostbite of the left hand at any point during the period on appeal. CONCLUSION OF LAW The criteria for establishing service connection for residuals of frostbite of the left hand have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. The Veteran was afforded a Compensation and Pension examination in May 2011, which produced findings pertinent to deciding the claim for entitlement to service connection for residuals of frostbite of the left hand. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds the examination adequate for its purpose. Moreover, neither the Veteran nor his representative has raised any issues regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person 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 (Fed. Cir. 2009). The Veteran's Assertions The Veteran contends in her March 2017 Board hearing testimony and her December 2010 Statement in Support of Claim that while on guard duty in service on an exceptionally cold night, she could no longer feel her hands, in particular, her left hand. She asserts that, currently, she experiences numbness in her left hand, inhibited hand movement and a reduced ability in the daily use of a keyboard at home, as well as in prospective employment situations. Residuals of Frostbite, Left Hand The Veteran's service treatment records (STRs) indicate that in the September 1992 enlistment examination, the examiner marked "NO" for current or past "Loss of finger or toe" and "Bone, joint or other deformity." In a May 10, 1995 examination, the clinical evaluation category of "Upper extremities" was marked "NORMAL." For current or past "Loss of finger or toe" and "Bone, joint or other deformity," the examiner marked "NO." In an October 2010 Narrative Report for Insurance Purposes, the Veteran's private treatment provider, Dr. G.S.C., noted the Veteran's reports of all her conditions, including incurring frostbite during basic training, which currently causes frequent numbness. Dr. G.C.S. concluded that, after reviewing the Veteran's personnel records and medical history, there are no other apparent causes for her current condition. He added that having examined the Veteran over the years, all of "[her] claims could be the cause of her current situation." He stated that it was his opinion that it is more likely than not that the Veteran's current conditions ...were caused by the events above and occurred during the Veteran's military service. In May 2011, the Veteran underwent a VA examination for cold injury at Birmingham VA, in which the VA examiner noted that the Veteran after the reported October 1992 onset of frostbite did not report any changes to her hands at the time and she did not subsequently seek medical attention for frostbite to one or both hands. The May 2011 VA examiner noted moderate, constant or near-constant burning pain from the tip of the left thumb to the wrist, with mild tingling, reportedly made worse in cold weather. There was no history of weakness, numbness or cramps after use. A sensory examination for both upper extremities produced normal findings. A detailed motor examination for the left and right wrists indicated active movement against full resistance, as well as normal muscle tone and no atrophy. The left radial pulse was normal, as was the right; there was no pain on manipulation of joints in any affected area; no edema; normal skin findings; and the strength of the ligament of affected areas was normal. The May 2011 VA examiner's review of the record revealed that "the course" since the reported October 1992 onset was stable and there are no current treatments; the Veteran's medical history did not reflect any history of hospitalization, trauma to the hand or fingers or neoplasm of the hand. There was no history of overall decrease in hand strength, hand dexterity or other hand symptoms. He noted a history of reported weekly moderate flare-ups of joint symptoms, involving the left thumb and metacarpal - phalangeal joints, which the Veteran reported as reducing her functioning by 50 percent. Upon examination, ranges of motion for each finger including thumbs on each hand indicated normal results and the same after repetitive motion. X-rays of the left hand revealed no fractures, dislocation or any significant degenerative changes; no bony erosions; and soft tissues were unremarkable. The May 2011 VA examiner stated his diagnosis as a "normal exam;" frostbite of the left hand is a "problem associated with the diagnosis;" and no effects on usual daily activities. The May 2011 VA examiner opined that the Veteran's left-hand injury is not caused by or a result of frostbite during military service. He stated his rationale as, the Veteran gives a history of cold hands, but there was "no treatment for frostbite [and] no documentation of frost bite." As stated earlier in this decision, to establish service connection, there must be a current disability, the in-service existence of the disease or injury and a nexus between them. The Veteran's service treatment records do not mention any complaint, diagnosis or treatment related to frostbite. In her own testimony at the March 2017 Board hearing, the Veteran stated she did not seek treatment during or after service. Although Dr. G.S.C, in his October 2010 narrative report regarding all of the Veteran's conditions, alternately concluded that there are no other apparent causes for the Veteran's current condition and that "[her] claims could be the cause of her current situation" (emphasis added), he provides no support by any reference whatsoever to clinical findings, making his statements conclusory and self-confirming. For these reasons, his opinion is assigned only limited probative weight. Moreover, the appellant has not submitted any clinical evidence of treatment for or findings of frostbite or the residuals thereof. In contrast, the May 2011 VA examiner upon examination made findings of only normal results in all tests, which is consistent with the x-ray interpretation. Although stating that frostbite was a problem associated with the Veteran's diagnosis, the May 2011 VA examiner specifically opined that the Veteran's "left-hand injury" is not caused by frostbite and explained that there was no treatment for frostbite and no documentation of frost bite, as the Veteran never reported frostbite or sought treatment in service and never pursued treatment after service. The May 2010 VA examiner conducted a thorough examination of both hands; an x-ray study of the left hand was included and its results are part of the examination findings; and he rendered an opinion, which he supported by reference to the record and by an accurate characterization of its evidence. For these reasons, the May 2010 VA examiner's findings, diagnosis and opinion receive significant probative weight. Moreover, the record now before the Board gives no indication of an assessment, diagnosis or treatment therapies for residuals of frostbite. From all of the above, Board can only conclude that there is no current disability of residuals of frostbite. Conclusion The Board has carefully reviewed and considered the Veteran's March 2017 Board hearing testimony and her December 2010 Statement in Support of Claim, as well as the December 2010 statement of the Veteran's cousin, R.A.W. All of these have assisted the Board in understanding better the nature and development of the Veteran's disorder. As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran and her cousin are competent to provide statements of symptoms which are observable to their senses and there is no reason to doubt their credibility. However, the Board must emphasize that they are not competent to diagnose or interpret accurately findings pertaining to the Veteran's left-hand disorder or its relation to service, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record. In the absence of explicit indications of worsening signs and symptoms, it must rely on medical findings and opinions to establish the level of the Veteran's current disability. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). For the reasons stated and based on the findings and opinion of the May 2011 VA examiner, the Board finds that the Veteran is not entitled to service connection for the residuals of frostbite of the left hand. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim,"); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding that the Board must address recent pre-claim evidence in assessing whether a current disability exists, for purposes of service connection, at the time the claim was filed or during its pendency). The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to service connection for residuals of frostbite of the left hand is denied. REMAND The May 2011 VA examiner for an initial evaluation of PTSD stated that the Veteran has multiple recent psychosocial stressors and, based on her reports, pre-military anxiety and post- military stressors. The May 2011 VA examiner added that she is unable to determine or state the relationship between the current diagnosis she gave the Veteran and the in-service stressor. Additionally, the Veteran has submitted a highly detailed narrative of the in-service stressor event, its aftermath and her immediate and subsequent psychological reactions. Therefore, Board concludes that a new VA examination is required to clarify what diagnosis is most appropriate based on the Veteran's symptoms, even if some symptoms pre-date service, whether other symptoms were incurred in-service due to the stressor event or in fact aggravated existing symptoms. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and/or her representative for information pertaining to any current treatment for an acquired psychiatric disorder variously diagnosed at any VA facility or by any private treatment provider. Obtain any records pertaining to that treatment not yet associated with the claims file and associate them with the claims file. The Veteran's assistance should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, schedule the Veteran for an examination with an appropriate VA examiner. The examination should provide findings and diagnoses as to the nature, extent and current severity of the disorder, to include a review of the entire electronic claims file. Specifically, the examiner, using applicable criteria, should determine whether the Veteran's symptoms indicate a diagnosis of PTSD or a diagnosis for another psychiatric disorder(s). The complete electronic claims file must be made available to the examiner in conjunction with the examination. The examiner should detail all psychiatric findings. All indicated tests should be accomplished and all findings reported in detail. The examiner is further requested to render an opinion, addressing: (1) Whether is at least as likely as not (probability of at least 50 percent) that, even if there are indications of anxiety disorder or other psychiatric disorders existing prior to service, whether any in-service stressor event caused the incurrence of a particular psychiatric disorder(s). (2) Whether is at least as likely as not (probability of at least 50 percent) that, even if there are indications of anxiety disorder or other psychiatric disorders existing prior to service, whether the in-service stressor event caused the aggravation of an existing psychiatric disorder(s). The examiner should direct particular attention to the Veteran's December 2010 Statement in Support of Claim for PTSD (starting at page 5), which provides her narrative of the in-service stressor event. The examiner should comment on the findings and opinions of other examiners, which appear in the record, particularly in the May 2011 VA examination for an initial evaluation of PTSD. In addition, the opinion should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to the Veteran's acquired psychiatric disorder variously diagnosed, to include PTSD, depression and anxiety disorder, including the Veteran March 2017 Board hearing testimony, her lay statements, any lay statements of family members, friends, co-workers, or others, as well as the Veteran's reports to providers, as they appear throughout the record. Findings should be reconciled with other records on file to the extent possible. If an opinion cannot be made without resort to speculation, that examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completing the above development and any other indicated development, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs