Citation Nr: 1802915	
Decision Date: 01/12/18    Archive Date: 01/23/18

DOCKET NO.  12-08 700	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for cold injury residuals of the feet.


REPRESENTATION

Appellant represented by:	Adam Neidenberg, Attorney 


WITNESS AT HEARING ON APPEAL

Veteran and T.D.


ATTORNEY FOR THE BOARD

A. Norwood, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from November 1980 to June 1982. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified before the undersigned at an October 2015 hearing via video conference. A transcript of the hearing has been associated with the claims file.  

In a December 2015 decision, the Board remanded the claim for further development. The case has since been returned to the Board for appellate review.


FINDING OF FACT

The evidence of record is in equipoise regarding whether cold injury residuals of the feet are etiologically related to the Veteran's active service.


CONCLUSION OF LAW

The criteria for service connection for cold injury residuals of the feet have been met. 38 U.S.C. § 1101, 1131 (2012); 38 C.F.R. § 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA) 	

Initially, the Board notes that the Veteran has been provided all required notice. As evidenced by the Veteran's testimony of lack of treatment, there is no evidence of additional medical records not associated with the claims file. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2017). Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

The Board also finds that there has been substantial compliance with its December 2015 remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.).  

II. Service Connection

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498   (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). 

Certain chronic diseases may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty. 38 C.F.R. § 3.309(a). In this case, the Veteran has been diagnosed with cold injury residuals of the feet, which is not a chronic disability. Therefore, service connection on a presumptive basis is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a).

The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran avers that she has cold injury residuals of the feet as a result of military service. The claims folder reflects that the Veteran has been diagnosed with residuals from cold injury, bilateral feet. (See December 2016 VA medical examinations). Based on the medical evidence provided, the Board finds that the Veteran has met an essential element of having a disability for VA purposes.

The second element - an in-service injury - is shown through the Veteran's testimony in October 2015 when she reported she was diagnosed with frostbite in January 1981 and described the appearance of her feet at the time of the diagnosis. She has reported no other possible cold weather injury.

The Veteran testified of persistent symptoms of a bilateral foot disability since service, as did her partner since the late 1990's. The December 2016 VA examination appears to provide the first diagnosis of the condition by a medical professional.

Furthermore, although the December 2016 VA medical opinion found that the Veteran's symptoms, including residual bilateral foot pain, numbness, and resulting physical limitations, were consistent with and characteristic of the expected residuals from frostbite exposure of the feet, he opined that if the Veteran's frostbite to both feet was conceded to have occurred during her military service, then the Veteran's current symptoms of residual bilateral foot pain, numbness, and resulting physical limitations from frostbite were the result of her military service. The examiner indicated that the Veteran had no other known causes for the residual findings in her feet.

In making its decision, the Board has considered the statements of the Veteran and her witness, including testimony at the October 2015 hearing regarding her current symptoms. The Board acknowledges the competency of the Veteran and her witness to describe features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). Accordingly, the Board finds the statements, testimony, and medical evidence, specifically the 2016 VA medical opinion, which notes no other known causes for the residual findings in her feet bring the evidence into equipoise and in resolving all doubt in the Veteran's behalf a causal connection has been established. 38 U.S.C. § 5107 (b).


ORDER

Entitlement to service connection for cold injury residuals of the feet is granted.



____________________________________________
M.H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs