Citation Nr: 18153274 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-54 875 DATE: November 27, 2018 ORDER Service connection for frostbite of the face is denied. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a current diagnosis of frostbite of the face, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSION OF LAW The criteria for service connection for frostbite of the face are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2003 to August 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the Board notes that a February 2013 rating decision initially denied the Veteran’s claim for service connection for frostbite of the face primarily on the basis that he failed to report for a VA examination without good cause. However, within one year of the issuance of such decision, VA received a statement from the Veteran indicating that he had been unable to attend his scheduled VA examination and had attempted to reschedule it to no avail. Consequently, his claim was reconsidered in the September 2014 rating decision pursuant to 38 C.F.R. § 3.156(b). Therefore, the current appeal stems from the Veteran’s original January 2011 claim for service connection. The Board further observes that, while the October 2016 statement of the case addressed numerous issues in addition to entitlement to service connection for frostbite of the face, the Veteran limited his November 2016 substantive appeal to such matter. Consequently, it is the only issue properly before the Board. Entitlement to service connection for frostbite of the face. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he incurred frostbite of the face while stationed at Camp Fuji, Japan, during service in February 2006. In this regard, he reported that he trained on the gun range for a month and was exposed to snow, rain, and wind during such time period. The Veteran further states that his face locks into position when the temperature drops below freezing during winter months, and he is unable to release his facial muscles when he smiles or grimaces on occasion. Consequently, he claims that service connection for frostbite of the face is warranted. However, the Board finds that service connection must be denied as the probative evidence fails to show that the Veteran has a current disability of frostbite of the face at any point pertinent to the pendency of the claim. In this regard, while the Board does not doubt his exposure to the aforementioned elements and, in fact, he is service-connected for frostbite to the bilateral hands and feet as a result of such exposure, his post-service VA and private treatment records fail to reflect a diagnosis of a disability of frostbite of the face. Furthermore, at a September 2016 VA examination, the examiner considered the Veteran’s report that his check muscles tightened at times when he smiles when it is cold. However, she also noted that he denied any cold sensitivity in the tip of the nose and ears, and only reported symptoms when exposed to cold conditions. Furthermore, upon physical examination, there were no signs or symptoms of frostbite present on the Veteran’s face, to specifically include his nose and ears. Consequently, the examiner did not diagnose frostbite of the face. The Board affords great probative weight to the September 2016 VA examiner’s determination that the Veteran does not have frostbite of the face as she specifically considered the nature of his in-service exposure to cold and his current reports of symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board acknowledges the Veteran’s assertions that his face locks in the cold at times, and recognizes that he is competent to report symptoms he experiences or witnesses. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The Board further notes that lay evidence can be competent and 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, 1377 (Fed. Cir. 2007). In the instant case, while the Veteran is competent to report the symptoms he experiences or witnesses, he is not competent to relate such symptoms to a specific disability such as frostbite as he has not been shown to have the medical training necessary to do so. In this case, the clinical evidence does not demonstrate a competent diagnosis of a disability of frostbite of the face at any time prior to or during the pendency of the appeal. In fact, while the September 2016 VA examiner specifically consider the Veteran’s reported symptoms, she did not find evidence of frostbite of the face. Furthermore, the Veteran has not alleged functional impairment of earning capacity as a result of his reported symptoms Therefore, the Board finds that, at no time during the pendency of the claim does the Veteran have a current diagnosis of frostbite of the face, and the record does not contain a recent diagnosis of disability prior to the Veteran’s filing of a claim. Consequently, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection for frostbite of the face. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 8 U.S.C. 5107; 38 C.F.R. 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel