Citation Nr: 21001112 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 20-11 686 DATE: January 7, 2021 ORDER Entitlement to service connection for cold injury residuals of the right lower extremity (claimed as right foot frostbite) is granted. Entitlement to service connection for cold injury residuals of the left lower extremity (claimed as left foot frostbite) is granted. Entitlement to service connection for status post amputation of second toe, right foot as secondary to herein service-connected cold injury residuals of the right lower extremity is granted. Entitlement to service connection for status post amputation of second toe, left foot as secondary to herein service-connected cold injury residuals of the left lower extremity is granted. FINDINGS OF FACT 1. The Veteran’s cold injury residuals of the right lower extremity (claimed as right foot frostbite) are etiologically related to his military service. 2. The Veteran’s cold injury residuals of the left lower extremity (claimed as left foot frostbite) are etiologically related to his military service. 3. Amputation of the Veteran’s second toe, right foot was proximately due to cold injury residuals of the right lower extremity, which is granted herein. 4. Amputation of the Veteran’s second toe, left foot was proximately due to cold injury residuals of the left lower extremity, which is granted herein. CONCLUSIONS OF LAW 1. The criteria for service connection for cold injury residuals of the right lower extremity (claimed as right foot frostbite) have been met. 38 U.S.C. §§ 1110,  1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for cold injury residuals of the left lower extremity (claimed as left foot frostbite) have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for status post amputation of second toe, right foot as secondary to service-connected cold injury residuals of the right lower extremity have been met. 38 U.S.C. §§ 1110, 1154(b), 5103, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for status post amputation of second toe, left foot as secondary to service-connected cold injury residuals of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1154(b), 5103, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from January 1952 to January 1954, including combat service in the Korean Conflict. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran presented testimony at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is on record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 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). Service connection is also awarded on a secondary basis for a disability that is proximately due to, or aggravated by, a service-connected disease or injury.  38 C.F.R. § 3.310. The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 1286-88 (Fed. Cir. 2009). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to service connection for cold injury residuals of the right lower extremity (claimed as right foot frostbite) is granted. 2. Entitlement to service connection for cold injury residuals of the left lower extremity (claimed as left foot frostbite) is granted. The Veteran seeks service connection for bilateral lower extremity residuals of a cold injury, specifically frostbite, the Veteran contends he incurred during service. The Board finds service connection is warranted. First, regarding current disabilities, the record reflects that the Veteran has been diagnosed with cold injury residuals in his left and right foot. At the February 2018 VA examination addressing his cold injury residuals, the Veteran was diagnosed with left and right foot frostbite, dating back to 1952. The examiner then noted the Veteran currently experiences osteoarthritis manifested by residual arthralgia or other pain, cold sensitivity, numbness, and nail abnormalities in both of his feet. The Veteran also testified at his November 2020 hearing to experiencing excessive heat sensations and sometimes pain when trying to sleep. Thus, the Veteran meets the first criteria for service connection for bilateral lower extremity cold residuals, current disabilities. Second, regarding an in-service occurrence, the Board notes that the Veteran’s service treatment records do not document the presence of frostbite or cold injuries during service. The Veteran does not contend otherwise; he testified at his November 2020 Board hearing that Marines were not supposed “to be whiners and go on sick call.” Hearing Transcript, p.6. Further, the Veteran explained at his hearing that he was able to “doctor[] himself and keep going.” Id. However, in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C. § 1154(b). Here, the Veteran engaged in combat with the enemy during the Korean Conflict. His service personnel records reflect that he received a Bronze Star for March 1953 service in Korea, when he succeeded in constructing a tank firing position “over extremely hazardous terrain with heavy enemy mortar and rocket fire falling about his position.” Thus, the Board will consider the Veteran’s account of his cold injuries in service to be competent and credible if consistent with the circumstances of his service. At his November 2020 hearing, the Veteran described at least one incident during a winter patrol in Korea where his feet became wet and he had to remove frozen boots to switch from cold, wet to clean, dry socks. He recalled the need to “get circulation back” to his feet. He also described his duties included clearing mines to make safe passage for tanks. The Veteran’s personnel records note he was part of the 1st Tank Battalion, 1st Marine Division and operated a dozer tank to clear routes for tanks. His Form DD-214 reflects that he was a Tractor Operator, a classification within which the Board understands dozer tanks to fall. Thus, the Veteran lay testimony is consistent with the circumstances of his service and is taken as sufficient proof of the incurrence of his reported in-service cold injuries. The Board accepts the Veteran’s testimony as proof of in-service cold injuries, especially since where a portion of the Veteran’s medical records that could help corroborate cold exposure are noted to be unavailable. Third, regarding the final nexus requirement, the Board notes that there are two VA opinions on record, one indicating a positive association between the Veteran’s in-service cold injuries and his current disabilities and the other a negative association. The first, indicating a positive association, was conducted in February 2018. The examiner determined the Veteran’s current bilateral lower extremity cold injury residuals are at least as likely as not related to his military service, to include prolonged exposure in below zero-degree weather. Apparently, the RO found issue with this conclusion and requested a second, addendum opinion. However, the request asked the examiner to consider inaccurate evidence. For example, the request stated, “there is no evidence the Veteran was exposed to cold weather for a prolonged period of time with inadequate clothing.” However, as discussed above, the Veteran’s account of his military service has been deemed competent, credible, and true, and sufficient proof of his cold exposure, as statutorily required by 38 U.S.C. § 1154(b). Thus, this is an inaccurate factual premise and the subsequent March 2018 addendum opinion’s reliance on it renders the opinion nonprobative and inadequate regarding whether service connection is warranted in this case. Moreover, the Veteran explained at his November 2020 hearing that he currently suffers the same pain and symptoms that he has suffered since his in-service exposure to the cold. As such, there remains only one probative opinion on record regarding whether the Veteran’s cold injury residuals are related to service, a positive opinion. Resolving all reasonable doubt in favor of the Veteran, the Board finds that all three elements for service connection exist and that service connection for cold injury residuals is warranted. 38 U.S.C. § 5107. 3. Entitlement to service connection for status post amputation of second toe, right foot as secondary to herein service-connected cold injury residuals of the right lower extremity is granted. 4. Entitlement to service connection for status post amputation of second toe, left foot as secondary to herein service-connected cold injury residuals of the left lower extremity is granted. The Veteran seeks service connection for amputations of the second toe on his left and right feet, he believes occurred as a result of cold injuries sustained during service. The Board finds that service connection for amputations of the Veteran’s second toes is warranted as secondary to his herein service-connected cold injury residuals. Medical records reflect that the Veteran’s second toes were amputated in January and May 2014. The Veteran’s February 2018 VA examination report confirms the Veteran’s second toes were amputated. The February 2018 examiner also rationalized that the cold injuries suffered by the Veteran during service can produce bone deformities years after exposure to the cold and thus concluded that the Veteran’s second toe amputations are at least as likely as not related to the frostbite suffered by the Veteran during service. In support of his opinion, the examiner cited to medical articles, including one about soldiers from the Korean War with frostbite. The Board reiterates that the March 2018 addendum opinion has been found nonprobative and inadequate for the purposes of determining whether service connection is warranted due to its reliance on inaccurate data. As such, there again remains only one probative opinion on the relationship between the Veteran’s second toe amputations and the cold injury residuals he suffers as a result cold exposure during service, a positive one. Resolving all reasonable doubt in favor of the Veteran, the Board finds that service-connection for the Veteran’s bilateral second toe amputations is warranted as secondary to the Veteran’s herein service-connected cold injury residuals. 38 U.S.C. § 5107. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante 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.