Citation Nr: 21067812 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-18 828 DATE: November 5, 2021 ORDER Entitlement to service connection for cold weather injury residuals (frostbite) is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the evidence shows that the Veteran's claimed frostbite condition was not present in service and is not related to service or to an incident of service origin. CONCLUSION OF LAW The criteria for entitlement to service connection for a frostbite condition have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1984 to June 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the Board must apologize to the Veteran for the delays in the full adjudication of his claim. In June 2019, a videoconference hearing was held before a Veterans Law Judge (VLJ) other than the undersigned, but due to problems with the electronic recording system, portions of the hearing were inaudible and could not be transcribed. In October 2020, the Veteran was offered a new hearing, and he testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. In December 2020 the Board remanded the Veteran's claim for further development. It has now returned to the Board for further appellate review. Service Connection The Veteran contends he suffered frostbite to his fingers, feet and ears in service and has had residual symptoms of pain, numbness and tingling during cold weather since service. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, service connection may also be granted on the basis of a post-service initial diagnosis of a disease when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Importantly, the Veteran bears the burden of presenting and supporting his claim for benefits. See 38 U.S.C. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for cold weather injury residuals The Veteran contends that during U.S. Army Ranger training he developed frostbite on his fingers, feet, and ears and he reports that he attended Ranger school during the coldest temperature on record at that time. Turning to the evidence, the Veteran's service treatment records (STRs) are silent for diagnosis, treatment or complaints of frostbite or residuals of cold weather injury. The Veteran reports that he did not report his cold weather injuries during his training in the U.S. Army Ranger school out of fear of being removed from the Ranger training program. The Board has considered this statement, and is sympathetic to it, but the preponderance of the evidence shows that after graduating from Ranger school in April 1985, the Veteran did in fact make many other medical complaints and was seen for other medical issues (e.g., knee, ankle and back problems) during his remaining time in service (i.e., for seven years in service after Ranger school). However, there is not a single complaint of cold weather injury, or frostbite, at any time in service, most especially in the seven years after graduating from Ranger school, while he was still yet in service. While the Board finds the Veteran competent and credible to report the cold weather he experienced during service and the observable effects of such bad weather on his body during U.S. Army Ranger training, it is unlikely that he would make complaints in service of only some medical problems, after Ranger school was complete, but yet omit his claimed cold weather residual injuries entirely, if in fact, such injuries bothered him at any point during service. Notably, on separation from service, the Veteran reported he was in excellent health, was on no medication, never bled excessively after injury, and had no skin diseases. See April 1992 Separation Examination and Report of Medical History. It is important for the Veteran to understand that, at this point, the Veteran himself is providing evidence against this claim. Following service, there is no complaint of a frostbite injury until 2015, nearly twenty-five years after discharge, where the Veteran claimed for the first time that he has frostbite from service, for purpose of applying for compensation through the VA. See Statement in Support of Claim, January 2015. Importantly, the Board notes that a single treatment note from May 2020, nearly thirty years after service, shows the Veteran reported frostbite injuries stemming from service and that he was referred to dermatology for persistent symptoms of frostbite. In this case, however, the service and post-service treatment records, even considering the Veteran's lay testimony, lack the combination of manifestations sufficient to identify a chronic disability as distinguished from merely isolated findings. Tellingly, the United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many, many, years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). The Veteran underwent a VA examination in April 2021 for cold weather injury residuals. Here, the examiner noted on examination that the Veteran's hands appear overall normal, though there is some plethora of the palms and distal finger pads, some mild xerosis, and at least on his fingertip, he has some ecchymotic like area. However, the examiner went on to opine that the Veteran's claimed frostbite condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In support, the examiner opined that the Veteran has nonservice-connected diabetic neuropathy, and there was no cold weather injury diagnosis warranted based on the available records or by physical examination. Moreover, the examiner noted there is no evidence to establish a chronic diagnosis from the available records or by physical examination. Additionally, the examiner highlighted the Veteran's statement in support of his claim from January 2015 but noted that the reported symptoms and diagnosis were subjective only, not confirmed by any medical evidence of record. The Board finds that the absence of any complaint, treatment or diagnosis for frostbite residual injuries in service, or for thirty years after leaving service, as well as the April 2021 VA medical opinion, provides a preponderance of evidence against finding service connection for the Veteran's claimed condition. Tellingly, the April 2021 examiner reviewed the Veteran's claim file, examined the Veteran in person and considered his statements and made conclusions supported by the evidence and consistent with the record that there is no diagnosis of frostbite connected to his service. As such, the Board finds the April 2021 VA opinion to be the most probative evidence of record against finding service connection for the Veteran's claimed disability. Furthermore, the Board has considered the statements from the Veteran asserting, in essence, that he suffered frostbite while in service and has had pain since, to include cracking of skin, numbness and tingling in his hands, ears and feet. However, while the Veteran is certainly competent to report as to the observable symptoms he experienced and their history, he is not competent to diagnose a frostbite condition during service, or render an opinion as to the etiology of his current disability since service, because of the medically complex nature of such a diagnosis or opinion. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In summary, the most probative and persuasive evidence of record is against a finding that the Veteran's claimed frostbite injury is related to service. As such, the preponderance of the evidence is against the claim, and service connection is denied. In reaching the above conclusions the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for a frostbite disability that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND 1. Entitlement to service connection for right ankle injury 2. Entitlement to service connection for back disability Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal. The Veteran contends his right ankle and back disabilities manifested during service and have persisted since. The Veteran's service treatment records show he complained of right ankle instability and low back pain on multiple occasions. Post-service treatment records show he has been receiving treatment for right ankle instability and low back pain. Moreover, during his hearing and on examination, the Veteran competently reported right ankle and back symptoms that have persisted since service and there is no evidence of record to directly contradict his report. The Veteran is competent to report symptoms and aspects of a disability that are observable by his five lay senses, such as pain. The Board finds that while the Veteran was afforded VA examinations in April 2021 to obtain needed etiology opinions as to his right ankle and back conditions, the negative etiology opinions provided by the (same) examiner are inadequate because they are based on an inaccurate history. See Miller v. Wilkie, 32 Vet. App. 249, 252 (2020) (holding that when an examiner fails to address the veteran's lay evidence, and the Board did not find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination). Specifically, while the examiner noted the Veteran's complaints of episodic right ankle and low back pain that started in service, in rendering the negative nexus opinions, the examiner relied on the lack of objective evidence of continuity of care for the Veteran's conditions from his time in service but did not consider the lay statements provided by Veteran as to continuity of his symptoms. The examiner also reported that a private treatment note from February 2020 indicates the Veteran may have degenerative joint disease (arthritis) in his right ankle, but that she was unable to locate the x-ray report in the claims file. There is no reason why VA cannot provide this Veteran with a current x-ray examination for his right ankle, to confirm or deny the existence of arthritis in his right ankle, especially given this record in particular. Additionally, the examiner reported a private treatment note in 2020 indicated the Veteran has low back pain secondary to a herniated disc, but again, was unable to locate radiology results. On remand, the examiner should perform all necessary testing, to include diagnostic testing, if necessary, on re-examination. Accordingly, the Board determines that a remand is warranted for new VA medical examinations and opinions that adequately address the Veteran's lay statements as to continuity of symptomatology related to his right ankle and back disabilities. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 31 (once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one). 3. Entitlement to a TDIU As a threshold matter, the Board notes that the RO granted the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) in April 2021, evaluated as 70 percent disabling, but deferred the issue of whether the Veteran is entitled to individual unemployability (TDIU) for completion of VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. A July 2021 rating decision denied the claim for TDIU because the Veteran did not file a timely VA Form 21-8940 (TDIU application), which was required to further consider the claim. While the Veteran did not file a separate appeal as to the TDIU issue, the record shows that the RO nonetheless included the TDIU issue in the Veteran's July 2021 supplemental statement of the case (SSOC) upon returning the case to the Board for further appellate review. As such, the Board elects to exercise jurisdiction over the claim of a TDIU in this matter. See Percy v. Shinseki, 23 Vet. App. 37 (2009). However, a review of the record reveals the Veteran submitted additional evidence in support of his TDIU claim after the July 2021 rating decision and SSOC was issued. This evidence was submitted in September 2021 on the following VA forms: VA 21-4138 Statement in Support of Claim, VA 21-4192 Request for Employment Information in Connection with Claim for Disability, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, as well as VA Form 20-0995 Supplemental Claim Application for TDIU. This evidence has not yet been considered by the RO nor is there any indication in the record that the Veteran has waived RO consideration of this evidence in the first instance. The matters are REMANDED for the following action: 1. Schedule the Veteran for examinations by an appropriate clinician to address the claims for service connection for right ankle and low back disabilities. The claims file must be thoroughly reviewed by the examiner in connection with the examinations. All tests and studies deemed necessary should be conducted and all findings should be reported in detail. Following review of the claims file and an examination of the Veteran, to include diagnostic testing, if needed, the examiner is asked to determine whether it is at least as likely as not (50 percent probability or greater) that any current disability found on examination is related to the Veteran's service. Please explain why or why not. The examiner is also advised that regardless of documentation in the post-service treatment records, the Veteran is competent to report that he has had continued symptoms since service for both his right ankle and back disabilities. If there is a medical basis to doubt the history reported by the Veteran the examiner should so state, and explain why. A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. Review the additional evidence submitted by the Veteran in September 2021, including the September 2021 TDIU application, supplemental application for TDIU and statement in support of his claim. The RO should determine whether this new evidence changes the prior determination made in this case on the issue of TDIU. 3. Readjudicate the claims remaining on appeal, considering any evidence submitted since the most recent statement of the case (SOC). If the benefits sought remain denied, issue a new supplemental statement of the case (SSOC) and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.