Citation Nr: 21069150 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-65 873 DATE: November 17, 2021 ORDER Entitlement to service connection for a cold weather injury to include any neurological residuals (also claimed as cold weather-itis and left arm/fingers tingling) is denied. FINDING OF FACT There is no competent evidence showing that the Veteran has been diagnosed with a cold weather injury, to include any neurological residuals, at any time during the appeal. CONCLUSION OF LAW The criteria for service connection for a cold weather injury, to include any neurological residuals, have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably for the United States Air Force from January 1951 to January 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Board remanded the Veteran's claim for additional development. In particular, the December 2020 Board decision asked that supporting evidence be requested from all appropriate sources as to the Veteran's "TDY" or deployment to Thule Air Force Base in Greenland. These sources included the Joint Services Records Research Center (JSRRC), National Archies and Records Administration (NARA), or another appropriate repository. In October 2021, the Veteran's representative asserted that the AOJ did not comply with the Board's December 2020 remand instructions, as the records from JSRRC were not requested. See October 2021 Appellate Brief. The Board notes that there has been a regulatory amendment removing the reference to the JSRRC in 38 C.F.R. § 3.156 (c)(2). The Federal Register explained that the JSRRC no longer exists but that the military records themselves previously researched by the JSRRC remain available for research by VA as an official source of records. The VBA's Office of Administrative Review (OAR) has advised that the Veterans Benefits Administration (VBA), which the RO falls under, is using an internal process to research records. In this case, the RO requested copies of treatment records or other evidence from NARA regarding the Veteran's "TDY" or deployment to Thule Air Force Base in Greenland in December 2020, January 2021, February 2021, and May 2021. The requests resulted in negative findings. The AOJ also undertook a Personnel Information Exchange System request to obtain the records, in addition to contacting NARA, and requested that the Veteran submit any records in his possession. Given that the JSRRC no longer exists and that the AOJ has undertaken other efforts to confirm the Veteran's reported duty in Greenland, the Board finds that VA has substantially complied with the Board's prior remand with regard to this appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time, he or she files a claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). 1. Entitlement to service connection for a cold weather injury to include any neurological residuals (also claimed as cold weather-itis and left arm/fingers tingling). The Veteran contends that service connection is warranted for an asserted cold weather injury to include any neurological residuals, as he was exposed to cold weather conditions while stationed at Thule Air Force Base in Greenland, where he was there for twelve months and five days. The Veteran indicated that his left arm from his elbow down was tingling and noted that he could not hold anything in his fingers. See November 2014 VA 21-4138, June 2017 NOD, and December 2017 Form 9. As a preliminary matter, the Board notes that a portion of the Veteran's service treatment records are unavailable. See October 2014 Military Personnel Record. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's consideration of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). In this case, the competent, probative evidence of record does not demonstrate that the Veteran has a cold weather injury (to include any neurological residuals) that was caused by or is related to his military service, as the Veteran does not have a current diagnosis. Turning to the evidence of record, the Veteran's available service treatment records are negative for diagnosis or treatment as to his contended disability. At a discharge examination in December 1954, the Veteran's feet, heart, and bilateral lower and upper extremities were all found to be clinically normal upon examination as were his limbs, organs, and extremities. The Veteran also noted in his application that he was never treated for cold weather itis. See VA 21-526 Veterans Application for Compensation or Pension. Post-service treatment records have been silent as to any issues with a cold weather injury or with any tingling sensations in his left arm, left elbow, or left fingers. At medical treatment visits in October 2018 and October 2019, the Veteran reported no numbness and tingling. See December 2020 CAPRI. In January 2021, the Veteran indicated that he never went to the doctors for his left arm and left fingers. See January 2021 Correspondence. Pursuant to a December 2020 Board remand, the Veteran was afforded a VA examination in September 2021. In the Veteran's DBQ, he reported issues picking up small things, issues with numbness and tingling. He also noted that he was sent to a hospital in Tokyo due to complaints of numbness and tingling. The Veteran had symptoms of left-hand numbness radiating up and tingling pain. After examination, the VA examiner indicated that the Veteran does not have a current diagnosis of a cold weather disability. The VA examiner opined that the Veteran's claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner's rationale indicated that the Veteran did not have a chronic diagnosis for residuals of a cold weather injury, had normal objective examination findings, and that his symptoms were subjective. There is no conflicting evidence and the VA examiner's opinions warrant probative weight. The VA examiner's opinions are consistent with the lack of treatment during service and a lack of treatment post-service. Moreover, as noted above, the Veteran indicated in his application for benefits that he was never treated for cold weather itis and indicated in his January 2021 correspondence that he never sought treatment for his left arm and left fingers. Furthermore, the VA examiner's opinions are consistent, as there was no diagnosis noted throughout the record. The Board has considered whether the Veteran's reports of numbness, tingling pain, and difficulty picking up small things rise to the level of functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that pain in the absence of a presently diagnosed condition can cause functional impairment and thereby could constitute a disability for VA purposes). The Veteran is competent to report his symptoms as he observes them. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, Saunders does not stand for the proposition that "a veteran could demonstrate service connection simply by asserting subjective pain" because, "to establish a disability, the veteran's pain must amount to a functional impairment." Saunders, 886 F.3d at 1367. Here, the medical evidence shows no such functional impairment despite the Veteran's complaints. As noted above, the September 2021 VA examiner stated that the Veteran's objective exam was normal, and his complaints were subjective only. The examiner also included that the Veteran's symptoms did not impact his ability to work. Thus, given the evidence of record, the Veteran's symptoms do not rise to the level of a functional impairment of earning capacity. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; see McClain, 21 Vet. App. 321. Here, no underlying disorder was noted, and the Veteran's treatment records are silent as to any issues with cold weather injury residuals or tingling sensations in his left arm, left elbow, or left hand. Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. As there is no disability with respect to the claim, the Board does not reach the issue of whether the claimed disabilities are related to service. The only evidence in favor of the Veteran's claim consists of lay statements made by the Veteran. To the extent the Veteran reports he manifested symptoms of cold weather residuals during service and experienced tingling sensations in his left arm, left elbows, and left hand, as a lay person, he is competent to report those symptoms. However, he is not competent to provide a diagnosis in this case or determine that any particular symptoms were manifestations of his cold weather residuals. This issue is medically complex, as it requires medical training and interpretation of diagnostic testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board also acknowledges the lay statement by the Veteran's wife, as she noted that the Veteran was shipped to Greenland for a year and subsequently came home afterwards for 30 days. See January 2021 VA 21-4138 Statement in Support of Claim. However, the Board finds little probative value in her statement, as the underlying issue involves whether the Veteran has a current disability and most of her lay statements were associated with a back issue. In the absence of a current disability, service connection cannot be established. See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes). The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract in any way from the Veteran's service. Unfortunately, however, for the reasons and bases discussed above, the competent and probative evidence of record preponderates against a finding that the Veteran's cold weather injury to include any neurological residuals (also claimed as cold weather-itis and left arm/fingers tingling) is service connected. D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kim, 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.