Citation Nr: 21001831 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 12-21 649 DATE: January 12, 2021 ORDER Entitlement to service connection for frostbite, left foot, for purposes of accrued benefits is denied. Entitlement to service connection for frostbite, right foot, for purposes of accrued benefits is denied. Entitlement to service connection for lumbar degenerative joint and disc disease (claimed as low back pain), for purposes of accrued benefits is granted. FINDINGS OF FACT 1. The Veteran’s claimed for bilateral frostbite of the feet condition was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established, and the diagnosed conditions are not otherwise etiologically related to an in-service injury or disease, to include cold exposure during service. 2. Resolving reasonable doubt in the Veteran’s favor, his lumbar degenerative joint and disc disease (claimed as low back pain), began during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral frostbite of the feet are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for lumbar degenerative joint and disc disease (claimed as low back pain), are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1975 to October 1979. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in October 2014. The appellant, his surviving spouse, has been substituted for the Veteran in the claims pending at the time of his death. The Board notes that a hearing was held in March 2018 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded the Appellant’s claim in July 2018 to obtain any outstanding VA treatment records pertinent to the issues on appeal prior to October 17, 2006. A negative response was received, and to that extent the Board finds that its remand directives were substantially complied with. See October 2020 Correspondence; Stegall v. West, 11 Vet. App. 268, 271 (1998). 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, 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). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Here, the Board notes that the Veteran had diagnoses of bilateral foot degenerative joint disease and lumbosacral degenerative joint disease during the pendency of the appeal which are listed as a chronic diseases (arthritis) under 38 C.F.R. § 3.309(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for frostbite, left foot, for purposes of accrued benefits 2. Entitlement to service connection for frostbite, right foot, for purposes of accrued benefits The question before the Board is whether the Veteran’s claimed for bilateral frostbite of the feet condition is at least as likely as not related to an in-service injury, event, or disease, to include as due to cold exposure during service. See January 2010 VA Form 21-526. As to the first element of Shedden, for service connection the Veteran must show a current disability. Per the May 2010 VA examination report, during the pendency of the current appeal, Veteran had diagnoses of bilateral slight pes planus, bilateral hallux valgus, bilateral foot degenerative joint disease, tinea pedis, onychomycosis of the right great toenail, strain of the left third (middle) toe and the right fourth toe. As such, the Board finds the first Shedden element of service connection to be met. As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. The Veteran contends that while stationed in Germany he incurred frostbite of the feet. The Veteran’s service treatment records (STRs) indicate that he suffered tissue damage in his left foot due to cold exposure, as well as athlete’s foot during service, and therefore the Board finds the second Shedden element of service connection to be met. See May 1976, December 1976 STRs. As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease or injury. Per the May 2010 VA examination, the VA examiner noted that relative to the Veteran’s documented cold exposure, his separation examination does not mention any residuals of a cold injury, nor has there been any amputations in the area of the cold exposure. The VA examiner added that the Veteran did not report cold sensitivity in the area of the cold injury, nor did he report excess sweating of the feet. Rather, the Veteran reported intermittent numbness in the great and second toes on both feet, but with no objective evidence of disease for the symptom and therefore insufficient evidence to support a valid diagnosis. Relative to the Veteran’s diagnosed conditions of the feet, the VA examiner opined that the diagnoses of bilateral foot degenerative joint disease, bilateral slight pes planus, bilateral slight hallux valgus, tinea pedis, onychomycosis of the right great toenail, strain of the left third (middle) toe and the right fourth toe are not caused by cold injury in the service. The VA examiner’s rationale relied primarily upon the Veteran’s service separation examination which mentioned normal lower extremity, skin, feet, and neurological. Id.; June 1979 separation examination. The VA examiner also noted that there is no evidence that the Veteran suffered from a chronic foot condition in service, and he did not seek treatment for his feet until 2010. Id. The record also contains a May 2011 medical statement by M.D., DPM which noted that the Veteran reported chronic pain, numbness and tingling in both of his feet over the past 30 years and that the Veteran reported frostbite 30 years ago and since then had these symptoms. The Board finds that this statement has less probative value than and is outweighed by the May 2010 VA opinion because the statement does not give a definitive diagnosis, nor does it clearly relate the Veteran’s alleged chronic pain, numbness and tingling to service. Rather, the private medical opinion merely relays the Veteran’s own contentions, namely that he suffered frostbite in service, and has suffered from the aforesaid symptoms ever since. The Board acknowledges the Veteran’s lay testimony, namely that his history of neuropathy relates back to the cold exposure he experienced while in service. See June 8, 2011 VA treatment record; May 31, 2011 private medical opinion. The Board also recognizes the Appellant’s lay testimony that the Veteran’s feet often peeled and his toes were very dark and black. See May 2018 Board hearing testimony. The Board does not find the Veteran, or the Appellant, competent to provide a nexus opinion in terms of relating any of the Veteran’s diagnosed foot conditions to service, as the issues are medically complex in that it requires specialized medical education and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, relative to the Appellant’s statement regarding the appearance of the Veteran’s feet, the Board affords more probative value to the May 2010 VA examiner’s finding of no evidence of residuals of a cold injury to the Veteran’s feet, especially as the Veteran did not report sensitivity in the area of the cold injury during his VA examination. In sum, the Board finds that a preponderance of the evidence weighs against finding that the Veteran’s diagnosed foot conditions relate back to service. The most probative evidence of record noted that the Veteran does not suffer from any conditions that are in anyway related to the conceded cold exposure during service, nor does the Veteran suffer from a condition that was noted as being chronic during service or that manifested within the presumptive period. See May 2010 VA examination report. The appellant’s claim for service connection for a frostbite for the left and right feet, for purposes of accrued benefits, is denied. 3. Entitlement to service connection for lumbar degenerative joint and disc disease (claimed as low back pain), for purposes of accrued benefits The question before the Board is whether the Veteran’s claimed for low back pain condition is at least as likely as not related to an in-service injury, event, or disease. As to the first element of Shedden, for service connection the Veteran must show a current disability. Per the May 2010 VA examination, the Veteran has diagnoses of lumbosacral degenerative joint disease, lumbar disc disease with narrowing L4-L5, and mild retrolisthesis of L4 on L5, and therefore the Board finds that the Veteran’s claim meets the first Shedden element to service connection. As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. Per the Veteran’s STRs, he suffered a low back injury from lifting a TV, as well as from moving furniture during service. See November 27, 1978, May 15, 1978 STRs. Accordingly, the Board finds that the second element to Shedden for service connection is met. As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease or injury. Per the May 2010 VA examination report, the Veteran’s diagnoses are less likely than not caused by service as there is no documentation of a chronic back condition within 12-18 months of leaving service. The Board affords the May 2010 VA examiner’s medical opinion limited probative value, as it does not consider whether the Veteran’s claimed back condition incurred in service. To point, at service separation, the Veteran’s June 1979 Report of Medical History reveals reports that at the time he was still suffering from recurrent back pain. See also June 8, 2011 VA treatment record (“…has LBP since his military service.”). The Board does not find that the Veteran’s post-service July 2005 injury to his back in anyway detracts from his lay testimony of experiencing recurrent back pain since service separation. On this point, the Veteran added that the back injury he incurred during service was not worsened by the July 2005 injury. Id. Given the Veteran’s consistent and competent lay testimony of recurrent back pain since service, coupled with his statement of recurrent back pain at service separation, as well as the documented lower back injuries during service, the Board resolves reasonable doubt in his favor and finds that the evidence of record is at least in equipoise as to whether his diagnosed lower back condition incurred during service. See 38 C.F.R. § 3.303(d). Entitlement to service connection for lumbar degenerative joint and disc disease (claimed as low back pain), for purposes of accrued benefits, is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, Associate 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.