Citation Nr: 1807017 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-25 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for residuals of a cold weather injury of the bilateral feet. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served in the United States Army from February 1979 through February 1982. This case comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2016 hearing held at the RO, and a transcript of that proceeding has been associated with the electronic claims folder. This matter was previously remanded by the Board in November 2016, and has since been returned for further appellate review. In August 2017, the Veteran submitted a waiver of RO consideration of any evidence he submits to VA following the June 2017 SSOC. FINDING OF FACT Currently diagnosed peripheral neuropathy, plantar spurs, and flat feet were not incurred in, caused by, or aggravated by the Veteran's period of active service, to include a 1981 cold weather injury. CONCLUSION OF LAW The criteria for service connection for residuals of a cold weather injury of the bilateral feet are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with 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 a duty to assist argument). The Veteran also offered testimony before the undersigned VLJ at a Board hearing in August 2016. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior November 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the Board will proceed to address the merits of the case. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2017). In addition, service connection for certain chronic diseases, including organic diseases of the nervous system such as peripheral neuropathy, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For example, a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n. 4. Also, non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Non-expert nexus opinion evidence may not be categorically rejected. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The complexity of the question and whether a nexus opinion or diagnosis could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. In sum, whether non-expert (lay) diagnoses or nexus opinions are competent evidence depends on the on the question at issue and the particular facts of the case. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence of the record; every item of evidence does not have the same probative value. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's entrance report of medical examination noted pes planus. January and February 1981 STRs noted that the Veteran had severe foot pain for several days that started in the field. When the Veteran first presented with these complaints, there was soft tissue swelling of the toes with increased skin temperature and localized tenderness. The Veteran was assessed as having a cold weather injury of the bilateral feet. The next day, upon examination there was tenderness in the bilateral great toes, and all toes on the right foot. The Veteran was assessed as having "cold injury, no documentation of it." The Veteran signed a January 1982 statement declining a separation medical examination. The Veteran underwent VA general and cold injury protocol examinations in October 2011. The Veteran reported no bilateral foot symptoms at that time, and physical examination of the feet was normal. X-rays were significant for bilateral calcaneal spurs, assessed as asymptomatic. The examiner noted that the Veteran's STRs were significant for a report of bilateral foot symptoms, and foot examinations that did not describe signs of frostbite. The examiner then stated that the noted in-service cold weather bilateral foot injury was manifested by pain only, and was mild. The examiner stated there was no indication of a current cold weather injury of the bilateral feet. The examiner then stated that the in-service symptoms were not consistent with a cold weather injury, those symptoms were not severe at the time, and that there were no residuals. VA treatment records from 2013 document ongoing complaints of bilateral foot burning, stinging, and tingling sensation. An August 2013 VA treatment record documented the Veteran complained for burning of the feet for several weeks. At an October 2013 VA neurology consultation, the Veteran complained of a burning, stinging, and tingling sensation that had been present for the past few years. Following examination and testing, the assessment was bilateral feet paresthesia/dysesthesia with probable small fiber neuropathy. The Veteran was referred for electrodiagnostic studies to confirm the presence of neuropathy. A December 2013 VA treatment note reported that following diagnostic testing, there was no electrodiagnostic evidence for peripheral neuropathy. A July 2016 VA treatment note documented that the Veteran continued to complain of burning in the feet that had been present for many years. At that appointment the Veteran reported that he had to be off his feet for 2 months while in service following a frost bite injury of both feet. On examination the Veteran had decreased sensation to monofilament bilaterally, and no wounds or sores. The assessment was diabetes mellitus and decreased feeling on both feet with tingling. A diabetic foot examination was also provided at that time. The treatment provider documented there was peripheral neuropathy with sensory loss to the feet, and diminished pedal pulses. The examiner documented there was diminished pedal pulses and foot deformity with history of minor foot deformity. The examiner then indicated there may be any one of the following alone: Charcot joint disease of the foot with deformity, ESRD, history of foot ulcer, amputation, or osteomyelitis, or severe peripheral vascular disease of the lower extremity. A July 2016 VA podiatry consultation documented that while the Veteran did not have a diabetes diagnosis listed in his formal record, he was taking diabetic medication. The treatment provider clarified the Veteran did have sensation loss to the foot without evidence of vascular disease, foot deformity, history of foot ulcer, osteomyelitis, history of ESRD, or Charcot foot. The treatment provider explained that diabetic peripheral neuropathy could be managed medically at the primary care level, and the Veteran was recommended for general medical management. At the August 2016 VA Travel Board hearing, the Veteran testified that he was frostbitten in service, and that both of his feet had severe swelling. He reported that he had current bilateral foot symptoms of burning, stinging, and throbbing that had continued since service. The Veteran reported that he did not seek treatment for his feet prior to 2011 because he had no insurance. The Veteran also stated that he did report bilateral foot symptoms of burning, stinging and throbbing to the October 2011 VA examiner. A January 2017 VA treatment note documented the Veteran had a diagnosis of diabetes mellitus and decreased feeling of both feet that was controlled with medication. The Veteran was provided another VA examination in March 2017, at which time the examiner only noted diagnoses of cold injury syndrome of the bilateral feet and degenerative plantar spurs. In response to the question of whether or not the currently present residuals of a cold weather injury to the bilateral feet were incurred in or caused by the Veteran's period of service, the examiner indicated the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury. In support of that opinion, the examiner stated that "the cold weather injury occurred in 1981 . . . with resultant burning/numbness/stinging of feet and toes. He continues to have burning/numbness and stinging feet today." The same examiner also opined that the claimed condition "which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The examiner's rationale was that the "Veteran reports separation shortly after injury. It is less than likely the cold injury was aggravated by military service." A June 2017 deferred rating decision noted that the March 2017 VA examiner, a nurse practitioner, provided conflicting and confusing opinions and an addendum opinion was solicited from a physician. An addendum opinion was provided in June 2017 by a doctor of podiatric medicine. The examiner reviewed the Veteran's electronic claims folder, and made specific note of the records identified in the 2016 remand. The examiner stated their belief that the Veteran was a competent witness, and his lay statements regarding symptomatology were taken into consideration. The examiner opined that the Veteran's claimed foot condition was not caused or aggravated by his period of service, to include the in-service cold weather injury. First, the examiner explained that current occupational and medical literature indicated that a nonfreezing cold injury occurred when tissues were cooled to certain temperatures for prolonged periods. Clinically, there were three stages of non-freezing cold injury. Stage 1 was initial erythema, edema, and tenderness. Stage II followed within 24 hours with paresthesias, marked edema, numbness, and sometimes blisters. Stage III corresponded with progression to a usually superficial gangrene. Since stages I and II resulted in reversible and minimal tissues destruction, then it was at least as likely as not that these stages were acute, self-limiting, and transient. The examiner then explained that the Veteran's active duty records clearly showed a cold weather injury with subjective complaints, but no objective dermatologically based clinical evidence to support epidermal or sub-dermal changes of the skin. Although the separation examination was not available for review, the presumptive period records and remaining interim active duty records prior to discharge were negative for complaints, chronicity, and continuity of a cold weather toe condition. Thus, the examiner concluded that it was at least as likely as not that the Veteran's claimed cold weather injury residuals were confined to the distal aspect of the forefoot, to include only the toes, and the event was acute, transient, and self-limiting Stage 1 event. Second, the examiner explained that the post service records, and VA treatment records from 2013 through 2016 indicated subjective complaints of bilateral paresthesia with antalgic gait. Medically, the Veteran also carried objective clinical evidence to support a diagnosis of diabetes mellitus, type II. Because the fluctuation of blood sugars were known to result in changes within the small, intermediate, and large blood vessels and nerve tissue moiety; diabetic neuropathy was a known and expected clinical complication of diabetes mellitus, type II that occurred in 60 and 70 percent of persons with diabetes. Thus, the examiner concluded that it was at least as likely as not that the Veteran's current diagnosis of bilateral paresthesia was related to his diabetes mellitus, type II. With regard to the December 2013 electrodiagnostic testing results, the examiner explained that the early stages of peripheral neuropathy were not always diagnostic by early testing despite clinical signs and symptoms of diabetic peripheral neuropathy. Thus, the examiner concluded that it was at least as likely as not that the Veteran's current foot disorders was related to and was aggravated by his diabetes mellitus. Third, with regards to the Veteran's bilateral plantar spurs and flat feet, the examiner explained that radiographs were negative for any feet findings related to a cold weather injury such as osteopenia, distal phalanx whittling, and soft tissue perforations consistent with chronic ulcerations and/or loss of skin and subcutaneous tissues. Also, the examiner explained there was no medical literature that supported a nexus between bilateral calcaneal spur formation or pes planus and a cold weather injury. Moreover, the STRs showed that the cold weather injury was confined to the toes, whereas the other foot conditions were located in an anatomically separate area. Thus, the examiner concluded it was less than a 50 percent probability that the Veteran's bilateral calcaneal spurs and pes planus were related to his in-service cold weather injury. In conclusion and based on the cited evidence, the examiner overall found that it was less than a 50 percent probability that the Veteran's claimed cold weather injury residuals were related to or aggravated by his period of active service. In September 2017, Dr. LW of Wake Forest Baptist Health wrote that in his opinion, it was at least as likely as not that the Veteran's foot condition was due to residuals of a cold weather injury caused or aggravated by his military service, but no rationale was provided. In November 2017 Dr. LW wrote that the Veteran suffered severe frost bite in service and now had chronic and debilitating neuropathy in his hands and feet that made him disabled and unable to work. The letter also documented Dr. LW was an oncologist treating the Veteran for lung cancer. Based on the foregoing, entitlement to service connection for residuals of a cold weather injury is not warranted on a direct basis. First, the most probative evidence of record demonstrates the Veteran does not have residuals of a cold weather injury of the feet, and his currently diagnosed feet conditions are not etiologically related to service. Rather, the evidence demonstrates the Veteran's symptoms are related to diabetic peripheral neuropathy. See July 2016 VA podiatry record; January 2017 VA treatment record; June 2017 VA examination report. In reaching this conclusion, the Board places the greatest weight on the medical opinion provided by the June 2017 VA podiatrist. That examiner thoroughly reviewed and accurately reported the Veteran's medical history and considered his lay testimony. The examiner's ultimate conclusion that the Veteran's feet disorders were not etiologically related to service was based on a very detailed rationale that including review of relevant medical literature. The March 2017 VA examiner's opinions are contradictory and as such the Board affords them no weight. Although Dr. LW provided a positive nexus opinion in 2017, no rationale was provided and the Veteran's claims file was not reviewed save the STRs documenting the cold weather injury. Also, the June 2017 VA examiner's rationale was far more thorough. Thus, the Board affords the March 2017 positive VA opinion and the September 2017 opinion from Dr. LM less weight than the conclusions of the June 2017 VA examiner. The Board has considered the Veteran's statements that he has current cold weather injury residuals, however he has not been shown to have the medical expertise regarding the nature and etiology of his bilateral foot disorders, which are complex internal medical conditions not capable of lay observation, as opposed to varicose veins or ringing in the ears. In sum, the Board finds that the most probative evidence of record weighs against a finding that the Veteran's bilateral foot peripheral neuropathy, calcaneal spurs, and pes planus are related to a period of active duty service. Accordingly, the criteria for direct service connection under 38 C.F.R. §§ 3.303 are not met. Second, service connection is not warranted for peripheral neuropathy on a presumptive basis as the most probative evidence of record does not show that peripheral neuropathy manifested to a compensable within a year of separation from service, not is there sufficient evidence to establish chronicity of symptoms from service to present. In this regard, when the Veteran first filed a claim for a bilateral foot condition in 2010, he reported that his feet were frostbitten in 1981. Regarding the date that his reported foot numbness began, the Veteran wrote January 2008 and August 2010. VA treatment records from 2013 document the Veteran's complaints of bilateral foot symptoms began within the last few years. There is no objective medical evidence otherwise supporting a finding of chronicity of bilateral foot symptoms since the in-service cold weather injury. In light of the inconsistencies in the Veteran's testimony regarding onset of symptoms, the Board places greater probative weight on the objective medical evidence that fails to demonstrate continuity of symptoms since service. Also, there is no objective medical evidence to demonstrate that peripheral neuropathy developed to a compensable degree within one year of separation from service. Thus, service connection under the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 for peripheral neuropathy is not warranted. As the evidence preponderates against the claim, there is no reasonable doubt to be resolved and the claim is denied. ORDER Entitlement to service connection for residuals of a cold weather injury of the bilateral feet is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs