Citation Nr: 21072758 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 19-08 878 DATE: December 6, 2021 ORDER The petition to reopen the claim of entitlement to service connection for cold injury of the right lower extremity (claimed as frostbite) is granted. The petition to reopen the claim of entitlement to service connection for cold injury of the left lower extremity (claimed as frostbite) is granted. Entitlement to service connection for cold injury of the right lower extremity (claimed as frostbite) is denied. Entitlement to service connection for cold injury of the left lower extremity (claimed as frostbite) is denied. FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for cold injury of the right lower extremity was denied by an April 2014 RO rating decision; the appellant was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one year. 2. Evidence submitted since the April 2014 RO rating decision pertaining to the issue of entitlement to service connection for cold injury of the right lower extremity includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran's claim of entitlement to service connection for cold injury of the left lower extremity was denied by an April 2014 RO rating decision; the appellant was notified of the decision and did not file a notice of disagreement nor submit new and material evidence within the following one year. 4. Evidence submitted since the April 2014 RO rating decision pertaining to the issue of entitlement to service connection for cold injury of the left lower extremity includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 5. The preponderance of the evidence is against finding that any disability of the Veteran's right lower extremity, including circulatory impairment, began during active duty service or is otherwise etiologically linked to an in-service disease, injury, or event from active duty service. 6. The preponderance of the evidence is against finding that any disability of the Veteran's left lower extremity, including circulatory impairment, began during active duty service or is otherwise etiologically linked to an in-service disease, injury, or event from active duty service. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of entitlement to service connection for cold injury of the right lower extremity have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 2. The criteria for reopening the claim of entitlement to service connection for cold injury of the left lower extremity have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. 3. The criteria for service connection for cold injury of the right lower extremity are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for cold injury of the left lower extremity are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from July 1953 to June 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran passed away in July 2019, while his petitions to reopen claims of entitlement to service connection were still pending. In August 2019, the Board dismissed the Veteran's appeal due to his death. In June 2020, the Veteran's surviving spouse, the appellant, was properly substituted as the claimant for his pending claims. See June 2020 Correspondence. At this point, the Board notes that the record indicates that any service treatment records were likely destroyed in the 1973 fire at the National Archives and Records Administration (also known as the National Personnel Records Center (NPRC)) and are unavailable for review. See June 2013 Formal Finding on the Unavailability of Service Records. Only the Veteran's June 1955 service separation medical examination report has been obtained for review in the evidentiary record. In such cases, the United States Court of Appeals for Veterans Claims (Court) has held that the duty to assist is heightened and includes an obligation to search alternative forms of records that may support the case. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). There is also a heightened obligation to explain findings and to carefully consider the benefit of the doubt rule in cases where records are presumed destroyed while in the possession of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not, however, lower the legal standard for proving all elements of the claim. Russo v. Brown, 9 Vet. App. 46 (1996). The June 2013 Formal Finding on the Unavailability of Service Records documents that "All efforts to obtain the needed military information have been exhausted; further attempts are futile...." The Veteran was advised of the loss of service records in an October 2018 duty to assist letter and asked to provide any documents that he may have in his possession as well as to complete and return NA Form 13055. His response to the request indicated that the Veteran could not recall the location of his in-service treatment at an "Army Hospital in Germany," he could not recall the details of his assignment at the time, and he could not recall the timing aside from beginning in September 1954 with an unknown duration. The appellant's claim of entitlement to service connection for the cause of the Veteran's death is in appellate status under the modernized review system, also known as the Appeals Modernization Act (AMA), and that issue shall be addressed in a separate Board decision. Service Connection Service Connection Criteria Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303; see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Service connection is limited to those cases where disease or injury has resulted in a disability. In the absence of proof of a present disability for which service connection is sought, there is no valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The requirement of having a current disability is met when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A disability under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (2018). 38 U.S.C. § 1154(a) requires that the VA give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every piece of evidence of record in detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Criteria to Reopen Claims Subject to Prior Final Denials In this case, the appellant petitions to reopen claims subject to prior final denials. Generally, an unappealed rating decision is final based on the evidence of record at the time of the decision, and may not be reopened or allowed based on such evidence. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 1. The petition to reopen the claim of entitlement to service connection for cold injury of the right lower extremity (claimed as frostbite) is granted. 2. The petition to reopen the claim of entitlement to service connection for cold injury of the left lower extremity (claimed as frostbite) is granted. In rating decisions dated in May 2000, April 2002, June 2013, and April 2014, the RO denied entitlement to service connection for cold injury of the right and left lower extremities, citing an absence of evidence showing a disability etiologically linked to any cold exposure during the Veteran's service. No appeal of these denials was filed, and no new and material evidence was received within one year of notice of the April 2014 rating decision. Accordingly, the rating decisions, up to the April 2014 denial, are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Following the April 2014 rating decision, new and medical evidence has been associated with the record. Specifically, the January 2019 notice of disagreement in this case was submitted with an accompanying statement from the Veteran's treating physician stating: "He has also noted to have chronically decreased blood circulation in the leg, which may be related to frostbite damage when in the military." The Board finds the new evidence is neither cumulative nor redundant of the evidence of record for prior final denials, and it is material because the evidence relates to unestablished facts necessary to substantiate the claims of entitlement to service connection. As new and material evidence has been presented for the issues of entitlement to service connection for cold injury of the right and left lower extremities, the claims are reopened. 3. Entitlement to service connection for cold injury of the right lower extremity (claimed as frostbite) is denied. 4. Entitlement to service connection for cold injury of the left lower extremity (claimed as frostbite) is denied. The Veteran and the appellant have claimed entitlement to service connection for residuals of cold injury to the Veteran's lower extremities / feet. The appellant essentially contends that the Veteran suffered from a disability of the lower extremities / feet, including impairment of circulation, as a result of cold temperature exposure suffered during his active duty military service. The Board finds that the evidence of record indicates that the Veteran had a potentially pertinent current disability during the pendency of this appeal; the private medical statement submitted in January 2019 is medical evidence of a lower extremity circulation impairment "which may be related to frostbite damage...." Thus, the first Shedden requirement has been satisfied. For the purposes of considering the contentions in this decision, the Board can assume arguendo that the Veteran experienced exposure to cold weather conditions during service. To this extent, the second Shedden requirement may be satisfied. The Board's analysis focuses primarily upon the third Shedden requirement. The Veteran may have experienced cold weather conditions and associated difficulties during service, and the Veteran is shown to have suffered from post-service lower extremity circulation impairment. The Board's analysis in this decision focuses upon the question of whether the third Shedden requirement is satisfied: was the Veteran's post-service disability causally linked to any in-service cold weather exposure? The contention of the Veteran and the appellant is that the Veteran's exposure to cold temperatures during winter overseas service resulted in cold injury with residual chronic disability involving impaired circulation of the lower extremities. This assertion of the Veteran and the appellant is not itself competent evidence supporting such a finding. The Veteran and the appellant are not shown to have the medical or scientific training to establish either a diagnosis of frostbite (as distinguished from cold temperature exposure) or to establish that a post-service circulatory impairment is causally linked to in-service cold exposure. While a layperson is competent to report having experienced lay-observable symptoms and events such a cold temperature conditions and associated difficulties, a layperson is not competent to establish a specific diagnosis of frostbite or a relationship between a circulatory impairment and remote military service with a general assertion. The matter of establishing such a diagnosis or an etiological link is medically complex, requiring medical knowledge and training to assess and distinguish clinical signs and to inform an explanation and rationale of the manner of such a link. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The evidence most supportive of finding the necessary nexus in this case is the January 2019 private medical statement indicating that the Veteran's lower extremity circulation impairment "may be related to frostbite damage while in the military." This statement is expressly speculative, indicating a mere possibility rather than any probability of a nexus. Additionally, the private medical statement relies upon the author's understanding that the Veteran experienced not merely exposure to cold weather during service, but specifically "frostbite damage" during service. This factual predicate of the medical opinion is not informed by contemporaneous evidence or any cited record of medical history; rather, the author appears to have been relying upon the assertions of the Veteran and the appellant in characterizing the Veteran's in-service cold weather exposure as including the medical diagnosis of "frostbite." The Board notes that the appellant's representative presents an argument, in an October 2021 written brief, that discusses: "Mental health evaluation of January 1959 provides a diagnosis of anxiety reaction related to x-ray evidence of an enlarged pulmonary artery. The provider notes Veteran was overseas but saw no combat, and that he was medically discharged from service." The representative argues: "Shortly after separation, Veteran's provider indicates that he was medically discharged from service, yet we do not know why because the records are missing." The Board has considered the representative's discussion, but notes that the cited January 1959 report does -not- indicate that the Veteran was discharged for medical reasons. Rather, the Board reads the report as stating: "received non-medical discharge June 1955," which is consistent with the absence of pertinent disability shown on the Veteran's June 1955 service separation examination report. While the Veteran may have felt that he had frostbite during service, he is not competent to establish this assertion as fact. Distinguishing the pathology of frostbite from other manner of pain or discomfort associated with cold temperature exposure involves medical training and knowledge to assess and interpret clinical signs. Medical expertise is required to opine on complex medical diagnostic matters. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, the U.S. Court of Appeals for Veterans Claims has held that a lay person's statement recalling what a physician told him/her, i.e., hearsay medical evidence, cannot constitute the medical evidence, as the connection between what a physician said and the layman's account of what he/she purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence. See Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that the evidence in this case does not include a competent medical showing that the Veteran suffered a frostbite injury during service. Weighing against the claim, the Veteran's June 1955 service separation medical examination report is of record and presents contemporaneous documentation of the Veteran's health and medical history at the conclusion of his military service, after the period of the contended cold exposure pertinent to this case. The service separation examination report includes notes summarizing the Veteran's medical history with no suggestion of frostbite, cold injury, or lower extremity circulatory impairment; the report includes a note stating that the Veteran had "[n]o complaints of a medical nature at time of this examination." The service separation examination shows that competent medical professionals performed a clinical examination revealing no abnormalities, including specifically with regard to the Veteran's feet, lower extremities, and his vascular system health. This is significant competent contemporary medical evidence indicating that the Veteran did not have the claimed lower extremity circulatory disability / disabling residuals of cold exposure as of June 1955, at the conclusion of his active duty military service and after the occurrence of the pertinent claimed cold exposure. The Veteran's June 1955 service separation examination report is highly probative evidence indicating that the Veteran did not have onset of the claimed lower extremity disability / circulatory impairment during active duty service. The Board finds that the June 1955 service separation examination weighs against the Veteran's claim more heavily than the January 2019 private medical statement supports the claim. The June 1955 report is contemporaneous competent medical evidence with clear clinical findings showing no pertinent abnormality or onset of the claimed disability during active duty service. The January 2019 private medical statement is competent medical evidence, but is expressly speculative in asserting merely the possibility of a nexus, and even in this assertion the opinion relies upon a factual predicate involving a medical diagnosis (the in-service occurrence of "frostbite" in particular) for which there is no primary medical documentation and for which there is no suggestion of such occurrence in the Veteran's service separation medical examination and associated medical history notes. The evidence of record does not otherwise indicate a nexus between the Veteran's claimed lower extremity disability / circulation impairment and his military service. No lower extremity circulation impairment or other manner of residual disability of cold injury is shown to have manifested in the Veteran during service or for many years following service. The Board has further reviewed the Veteran's medical records with attention to the possibility that such records may present an indication of an etiological link between the claimed lower extremity disabilities / circulation impairment and military service. Neither the Board's review of the evidence nor the contentions of the Veteran and appellant in this case have identified any such indications in the medical evidence of record. The Board notes that after the June 1955 evidence showing no pertinent disability during service, the evidence of record presents no medical indication of post-service lower extremity disability / circulatory impairment until decades after the Veteran's separation from active duty service. The Board notes that a January 2000 VA medical record shows that the Veteran was seeking VA compensation concerning his belief that he had experienced "frostbite of the feet" during service, but that he "has not had treatment for residuals...." The January 2000 record notes that the Veteran reported that he had "seen an outside podiatrist since the service," but there is no indication of how proximately following separation podiatric consultations began, nor is there a clear indication that such consultations concerned residuals of a cold injury (especially as the Veteran reported he "has not had treatment" related to frostbite as of January 2000). Again, the Veteran's service separation examination shows that there were no clinical abnormalities, including specifically with regard to the feet, lower extremities, and vascular system, at the time of the Veteran's separation from active duty service. Following the showing that the claimed disability did not have onset during active duty service, there is no evidence of the onset of the claimed disability until decades later. This period of many years following the Veteran's separation from active duty service without evidence of the emergence of the disability at issue is one factor that weighs against the Veteran's claim for service connection on a direct basis. See Maxson v. West, 12 Vet. App. 453, 459 (1999). The Board has considered whether additional development of a VA medical opinion is warranted in this case. The Board notes that the competent medical evidence of record suggesting that there is a possibility of a link between a current disability and any event during his military service specifies that the pertinent in-service event would have been "frostbite." The January 2019 private medical provider's statement is clear in citing the possible in-service factor as "frostbite damage," not merely cold temperature exposure. While the Board has assumed the Veteran's exposure to cold temperatures during active duty service for the purposes of this analysis, the Board has found that the probative evidence (featuring the June 1955 service separation examination report) weighs against finding that the cold temperature exposure resulted in "frostbite damage" during service. Thus, this is not a case in which there is evidence establishing that an event, injury, or disease occurred in service and an indication that the claimed post-service disability may be associated with the identified event. The evidence does not indicate that the Veteran's claimed disability may be linked to cold temperature exposure alone, and while the evidence indicates that the claimed disability may be linked to frostbite, the evidence does not establish that the Veteran had frostbite during service. The Board finds that the service separation examination report, in the context of the other evidence of record, is adequate to determine that the Veteran did not have "frostbite damage" to his lower extremities at the time that he separated for active duty service, and additional development at this time presents no reasonable prospect of significant new findings. Thus, further delay of this case for a medical opinion is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). The Board is bound to apply the laws and regulations as they apply to the case, and the Board must rely upon the competent medical evidence to resolve questions of a medical nature. In this case, (1) the June 1955 service separation examination report and (2) the period of many years following the Veteran's separation from active duty service without evidence of the emergence of the disability at issue are key factors weighing against finding that a nexus exists between the Veteran's lower extremity disability / circulatory impairment and his active duty military service. The assertions of a nexus from the Veteran and the appellant are not competent evidence to establish such a medical link. The competent medical statement from the Veteran's private doctor indicates only a mere possibility of a nexus to an in-service frostbite injury, and the evidence does not show that any cold temperature exposure during service actually included a frostbite injury to the Veteran; the suggestion of in-service frostbite is supported only by the Veteran's own account while being unsupported by the Veteran's service separation examination report or any other direct medical evidence. Because the preponderance of the evidence weighs against finding that the Veteran's lower extremity disability / circulatory impairment is etiologically linked to his service, the Board is unable to find that the criteria for an award of service connection are met in this case. The Board wishes that an outcome more favorable to the appellant could have been reached. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for cold injury of the feet / lower extremities. Hence, the benefit of the doubt doctrine does not provide a basis for a grant in this case, and the claim must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.