Citation Nr: 1807351	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  11-30 347	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for residuals of frostbite of the lower extremities.


ATTORNEY FOR THE BOARD

M.G. Mazzucchelli, Counsel


INTRODUCTION

The Veteran served on active duty from November 1976 to February 1977. 

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

In July 2015 and again in August 2017, the Board remanded the case for further development.


FINDING OF FACT

The competent and probative evidence of record is against a finding that the Veteran has residuals of frostbite of the lower extremities that manifested in service or are otherwise etiologically related to service.


CONCLUSION OF LAW

The criteria for service connection for residuals of frostbite of the lower extremities have not been met.  38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Notice and Assistance

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b) (2017).  A standard letter in December 2009 satisfied the duty to notify provisions. 

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c).  The Veteran's service treatment records, post-service VA treatment records, and Social Security Administration records have been obtained.  The Veteran was provided a VA medical examination in August 2010, and the RO obtained an addendum opinion from that VA examiner in September 2017.  The examination and addendum opinion, taken together, and with the other evidence of record, provide a sufficient basis for deciding the claim.  Thus, VA's duty to assist has been met.

II.  Service Connection

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017).  To establish service connection on a direct incurrence basis, the 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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In addition, certain chronic diseases, such as arthritis, may be presumed to have been incurred during service if the disease becomes manifest to a compensable degree within one year of separation from qualifying military service.  38 U.S.C. §§ 1116, 1137; 38 C.F.R. §§ 3.307, 3.309.  Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The service treatment records do not include any specific reference to frostbite or cold injury of the lower extremities.  In January 1977 the Veteran was seen with a complaint of numbness in both great toes.  Examination was negative and he was discharged to duty.  

In December 2008, the Veteran reported pain in the dorsum of both feet.  X-rays of the feet showed mild hallux valgus and mild degenerative change of the first metatarsophalangeal (MTP) joints, right greater than left.

On VA examination in August 2010, the Veteran reported onset of swelling of the feet in the 1990s.  He reported that his feet stayed constantly swollen across the toes and caused pain.  The Veteran reported that he feels like he stepped on a knife.  He felt sharp pain in the mid portion of his foot.  The Veteran identified the following symptoms: pain (while standing, while walking, and at rest); swelling (while standing, while walking, and at rest); stiffness (while standing, while walking, and at rest); lack of endurance (while standing and while walking).  The location of the pain was the metacarpophalangeal (MCP) joints.  The location of the swelling was the toes and MCP.  The location of the stiffness was the toes.  The location of lack of endurance was the entire foot.  Examination showed no evidence of swelling, instability, or weakness of either foot.  Both feet demonstrated painful motion, tenderness, and abnormal weight bearing.  X-rays in December 2008 showed mild degenerative joint disease of the first MTP joint bilaterally.  The examiner noted a normal peripheral nerve examination of bilateral feet.  The diagnosis was degenerative joint disease of bilateral feet.  The examiner stated that the Veteran's current condition of degenerative joint disease of the feet with normal peripheral nerves examination was less likely as not caused by or a result of the complaint of bilateral great toe numbness while in service.  The Veteran's "current condition is due to arthritis due to normal progression and occupation rather than incident while in service with bilateral toe numbness."

In the August 2017 remand, the Board noted that the August 2010 VA examiner provided a negative opinion on the question of whether the current degenerative joint disease of the feet was caused by or a result of service; however, the VA examiner did not specifically address whether the currently diagnosed foot arthritis was related to the in-service cold exposure to the feet.  The August 2010 VA examiner also provided a conclusory statement attributing the current arthritis to the Veteran's age and post-service occupation, without providing explanation (rationale) as to why the VA examiner had arrived at the conclusion.  

Pursuant to the Board's remand, the August 2010 VA examiner provided an addendum statement dated in September 2017:

Examiner will assume cold injury sustained to feet during service.  Per CPRS records Jan 6, 2017, Veteran drinks 6 pack per day, has sciatica, impaired fasting glucose, obesity (BMI 34.94).  The opinion regarding any lower extremity disability remains the same.  It is less likely as not that Veteran's foot condition including bilateral toe numbness is related to or etiologically related to service to include cold injury.  Rationale: Veteran had numbness of the great toes bilaterally in 1977.  No objective findings or diagnosis.  There is only one episode of complaint and there was no evidence of chronic disability.  There is not much significance to this report as there was no treatment due to no findings, just a subjective complaint.  Review of his records from 2010 til current shows no complaints or evaluation for any great toe numbness since his C and P exam.  It is noted that he has sciatica, obesity and [degenerative joint disease] of great toes as well as ETOH 6 pack daily; all of which can contribute to numbness.  Veteran was seen by neurologist Nov 15, 2010 noting motor exam with poor effort and give away phenomenon suggesting veteran was not cooperating with exam or possibly exaggerating findings.  Cold injury would cause more symptoms than just numbness in great toes, making it very unlikely that it is unrelated; DJD of the first great toes is very mild degenerative change.  Mild degenerative change for a person in the 50 years range is common.  It is most likely due to normal wear and tear.  Neither his djd or subjective numbness can be clearly stated as greater than 50% probability incurred in or related etiology due to service.  He has other factors that can contribute more as listed above.  He has no complaints about his condition other than during his C and P exam making it less likely a chronic disabling condition that warrants service connection.

The Board finds the VA examiner's addendum opinion probative as it includes a discussion of the service treatment records and provides plausible bases for the presence of the current foot complaints and diagnosis of mild degenerative joint disease of both feet.  The examiner specifically discusses and discounts the idea that cold injury in service could have caused the current disabilities.  She noted that the one mention of numbness of the great toes in service, with no objective findings on examination, was not significant, and that the current complaints were more likely related to other factors, specifically sciatica, obesity and degenerative joint disease of the great toes as well as significant daily alcohol use.  Further, the examiner provided a thorough rationale for the presence of mild degenerative joint disease of the great toes, noting that this was common in a person of the Veteran's age, and likely related to wear and tear.

The VA physician's rationale that the current disabilities of the feet were unrelated to service, to include cold injury therein, is persuasive and uncontradicted in the evidentiary record. 

While the Veteran is competent to report symptoms, he does not have the requisite training to diagnose whether he has chronic residuals of frostbite that are attributable to an inservice cause.  Such diagnosis is not a simple condition and, in this case, such opinion as to etiology is not a simple medical question susceptible to lay diagnosis and opinion.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). 

There is no other competent and probative medical or lay evidence that links the current left and right foot pathology to any aspect of the Veteran's brief period of military service more than forty years ago. 

The Veteran has degenerative joint disease of bilateral first MTP joints of the feet.  Arthritis is a presumptively service-connectable chronic disease; however the evidence does not show that any arthritis of either foot was manifest to a compensable degree within one year of service discharge.  Rather, the first diagnosis of such is in 2008, decades after separation from service.  Finally, given that arthritis of either foot was not noted in service, service connection is not warranted based on a continuity of symptomatology.

The preponderance of the evidence is against the claim of service connection; there is no doubt to be resolved; and service connection is not warranted.  See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

ORDER

Service connection for residuals of frostbite of the lower extremities is denied.



____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs