Citation Nr: 21000694 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-50 488 DATE: January 6, 2021 ORDER Entitlement to service connection for residuals of frostbite of the feet is denied. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had chronic residuals of frostbite of the feet at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for residuals of frostbite of the feet have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1963 to October 1966. In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. This matter is before the Board of Veterans’ Appeals (Board) following a Board remand in September 2019. The Veteran contends that he has frostbite of the toes of both feet during active service in Germany which has caused chronic residuals. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) the Federal Circuit held that pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment to earning capacity. In Martinez-Bodon v. Wilkie, the United States Court of Appeals for Veterans Claims (CAVC) found that symptoms resulting in functional impairment of earning capacity are not limited to pain alone, as in Saunders. Martinez-Bodon v. Wilkie, No. 18-3721, 2020 U.S. App. Vet. Claims LEXIS 1523 (August 11, 2020). Rather, when a Veteran experiences symptoms that lead to functional impairment of earning capacity and the Veteran's symptoms implicate the definition of disability in 38 U.S.C. § 1110, there may be a present disability. In Wait v. Wilkie the CAVC addressed the question of what is necessary for a claimant to demonstrate that his or her pain or other symptoms cause "functional impairment of earning capacity," and therefore meet the current disability requirement under Saunders. Wait v. Wilkie, No. 18-4349, 2020 U.S. App. Vet. Claims LEXIS 1609 (Aug. 26, 2020). The CAVC held that, to meet the current disability requirement under Saunders, "there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person." The CAVC clarified that the Board must make the factual determination whether the appellant's manifestations rise to the level of a functional impairment in earning capacity. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of the feet resulting from frostbite and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). VA treatment records indicate that the Veteran presented in November 2017 to establish care. At that time, he reported a history of chronic toe pain since 1967 when exposed to cold. Physical examination demonstrated strong dorsalis pedis pulses heard with doppler; and his feet were warm to touch with no swelling or redness. It was noted that his toes looked fine with no redness or discoloration. At his hearing before the Board in April 2019, the Veteran testified that no doctor had told him that he currently has residuals of frostbite of his feet. He stated that his private primary care doctor, Dr. K.H., told him that he could not make a determination because he did not have his medical records. The Board left the record open to allow the Veteran to obtain and submit evidence showing a diagnosis of the residuals of frostbite and a medical opinion connecting it to service. Thereafter, the Veteran submitted a New Patient Encounter record dated in June 2019 authored by a podiatrist which notes that the Veteran presented complaining of his toes freezing up in the wintertime. Physical examination demonstrated dorsalis pedis and posterior tibial pulses were palpable; temperature, tone, and turgor were within normal limits; neurological sensation was intact; hair growth was adequate, muscular skeletal strength was normal, and there was no pain on palpation of the toes. The assessment included no pain and possible Raynaud’s Disease. The podiatrist noted that he and the Veteran discussed referral to vascular for a work-up, but the Veteran declined stating that previous doctors did not follow up with him. Under the problems section, the podiatrist included Raynaud’s Syndrome without gangrene; status: active; onset: June 12, 2019. The Veteran underwent VA examination in January 2020 at which time the Veteran reported that when he was discharged from the service, he was in Germany, where it was colder, and came back to the United States, where it was warmer. He was seen by civilian doctors and inquired about frostbite because he began getting coldness in his feet a lot quicker than in times past. The Veteran reported that his toes got cold quickly, that he tried to not go outside when cold, and that he took warm showers so that his feet temperature would normalize so that he would not have to go to bed with cold feet Current symptoms included coldness in the feet and toes when exposed to cold temperatures. The Veteran denied any current treatment. With respect to functional loss or functional impairment, he reported that he could not go outside and be exposed to cold temperatures very long because his feet would start to get really cold. There was no pain on examination of the feet, and the examiner reported that there was no functional loss of either lower extremity attributable to claimed condition and that it did not impact the Veteran’s ability to perform in any type of occupational task (such as standing, walking, lifting, sitting, etc.). The examiner noted, “Todays objective exam is normal. Condition is by Veteran’s report only. A diagnosis is not warranted.” The examiner specifically noted that the Veteran did not have a diagnosis of Raynaud’s Syndrome. In a September 2020 addendum, the examiner wrote, in pertinent part, “Claims folder notes evaluation in 2019 which statement of toes freezing up in winter. No objective evidence in claims folder of chronic condition diagnosed in service or as a result of service.” With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Indeed, the courts have provided guidance for weighing medical evidence. They have held, for example, that a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). The private podiatrist’s assessment of “possible” Raynaud’s Disease in June 2019 is speculative. Medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. Jones v. Shinseki, 23 Vet. App. 382, 389-90 (2010). While the examiner listed active Raynaud’s Syndrome without gangrene under problems, his assessment listed only “possible” Raynaud’s Disease. Further, examination of the Veteran’s feet at that time was normal, with palpable dorsalis pedis and posterior tibial pulses; normal temperature, tone, and turgor; intact neurological sensation; adequate hair growth; normal muscular skeletal strength; and no pain on palpation of the toes. No abnormalities of the feet were recorded. As noted above, the podiatrist noted that he and the Veteran discussed referral to vascular for a work-up, but the Veteran declined. Thus, the private podiatrist’s assessment concerning a current diagnosis is of little probative or persuasive value, as he characterized the assessment of Raynaud’s Disease as “possible” and did not report any abnormal findings or provide a rationale for the assessment. In contrast, the Board affords significant probative value to the January 2020 VA examiner’s opinion that the Veteran did not have a current foot diagnosis, to include Raynaud’s Syndrome. The examiner provided a rationale, relying on the records reviewed and completion of the examination report revealing normal objective examination of the Veteran’s feet. Although the Veteran believes that he has a current diagnosis of Raynaud’s Disease related to his active duty service, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). And while the Veteran has provided articles and information about the diagnosis and treatment of Raynaud’s Disease, this information is of little probative value as it is general in nature and not specific to the Veteran’s individual circumstances. The Board gives more probative weight to the competent medical evidence, specifically, the January 2020 VA report of examination of the Veteran’s feet and the VA examiner’s corresponding opinion. Further, the Board finds that the Veteran’s symptoms do not rise to the level of a functional impairment in earning capacity. The Veteran has complained of toe pain and coldness in the feet and toes when exposed to cold temperatures. He has not described any functional impairment resulting from these symptoms. Examination of his feet has been entirely normal. Significantly, the January 2020 VA examiner reported that there was no functional loss of either lower extremity attributable to the Veteran’s claimed condition and that it did not impact his ability to perform in any type of occupational task (such as standing, walking, lifting, sitting, etc.). The Board finds that because the Veteran’s reported symptoms are not productive of functional impairment to earning capacity, they do not constitute a current disability. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for residuals of frostbite of the feet, and the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b) is not for application. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.