Citation Nr: 21075048 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-26 034 DATE: December 17, 2021 ORDER Service connection for a left foot disability (claimed as cold weather injury, left foot and plantar fasciitis, left foot) is denied. FINDING OF FACT The most probative evidence is against a finding that the Veteran's left foot disabilities began during his active service or were otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a left foot disability (claimed as cold weather injury, left foot and plantar fasciitis, left foot) have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1952 to March 1955. He received a Combat Infantryman Badge among other medals and awards. The Veteran died in December 2018. The Appellant is his surviving spouse, who has been substituted as claimant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). When formalizing his appeal in May 2016, the Veteran requested a hearing before a Veterans Law Judge. The Appellant was scheduled for a hearing in November 2021 but withdrew the hearing request. The Board will proceed accordingly. Service connection for left foot disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In cases where a veteran served continuously for 90 days or more during active service, and an organic disease of the nervous system becomes manifest to a degree of 10 percent within one year from the date of discharge, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran's complete service treatment and personnel records are not available. In response to a request from the RO for the Veteran's records in July 2014, the National Personnel Records Center responded that the Veteran's service records were fire-related (i.e., destroyed in a July 1973 fire at the National Archives and Records Administration) and that only a partial, reconstructed record from an alternate records source was available. The Board acknowledges its heightened duty "to consider applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision" when service treatment records are lost or missing. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). However, no presumption arises from missing records. Cromer, 19 Vet. App. at 217-18. In his claim, the Veteran reported that he was exposed to extremely cold weather conditions without proper footwear while serving on the front line for 14 months during the Korean War. The Veteran believed that his in-service cold weather exposure caused the left foot problems he was experiencing prior to his death. The Board notes that in the context of an unrelated claim, the Veteran reported having had "some" frostbite in Korea; however, he did not provide details of the in-service symptoms he believed to be frostbite and did not report receiving any treatment for such symptoms, or a diagnosis of frostbite, during or after service. Available service treatment records also do not show any in-service complaints, diagnosis, or treatment of foot problems. The first such medical evidence in the record is from several decades after service, specifically May 2013, at which time the Veteran was diagnosed with plantar fasciitis, among other conditions. A May 2014 podiatry record noted a diagnosis of left foot neuropathy, among other conditions. As the first criterion for service connectiona current disabilityis therefore met, and VA has conceded in-service cold weather exposure, the question becomes whether the Veteran's current left foot disabilities were related to this cold weather exposure. A VA medical opinion on this issue was obtained in December 2014. The examiner opined that neither the Veteran's plantar fasciitis nor his neuropathy was at least as likely as not caused by, or a result of, cold weather exposure in Korea. Regarding cold weather injuries in general, the examiner noted that generally no serious damage is seen until tissue freezing occurs, and that frostbite would manifest with symptoms such as blisters, swelling, or gangrene. Regarding the Veteran's cold exposure, the examiner noted the Veteran's separation examination from March 1955, which noted no abnormalities of the feet or neurological systems. The examiner concluded that "while cold exposure did occur on active duty, it did not appear to have been associated with any significant injury or complication. Consequently, it is more likely that no future residual problems would be expected from this resolved, in service situation." The examiner opined that the Veteran's plantar fasciitis more likely arose from everyday activities (noting common activities such as "prolonged standing" as possible risk factors) than an in-service event many years earlier. Similarly, the examiner opined that no future residual problems such as neuropathy would be expected given the lack of evidence of a persistent condition beginning in or shortly after service, and that given the onset of the Veteran's neuropathy later in life, this condition was more likely a result of unrelated circumstances in the period after service. The Board affords this opinion high probative value, since it is based on an accurate medical history specific to the Veteran and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Although the Veteran believed that his current left foot disabilities were residual effects of his in-service cold weather exposure, as a lay person he did not show that he had specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis or etiology). The etiology of foot disabilities that were diagnosed many years after the Veteran's service is a medically complex issue that requires medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his foot disabilities is not competent medical evidence. To the extent that the Veteran claimed continued symptoms since service, the Board does not find these assertions to be persuasive. In a January 2015 letter, the Veteran asserted that he had had problems with his feet since the winter and a half he spent in Korea. An April 2014 medical record regarding the Veteran's left foot complaints notes that the Veteran "[s]tates it started in combat" (although it is not clear what symptoms this refers to). Also, a May 2014 medical record notes that the Veteran reported that his current foot sensitivity began in Korea. However, in the April 2014 statement filed with his claim, the Veteran asserted that the cold weather conditions in Korea "later caused me to have problems with my Left Foot. I began treatment for this issue approximately one year ago..." In a January 2015 statement he asserted that "I've had the condition for the last 40 years," which would put the onset in approximately 1975, 20 years after separation from service. Given the inconsistencies in the Veteran's statements regarding the onset of his current left foot problems, the Board does not find the statements to be persuasive evidence of continued symptoms since service. The Board also notes that a May 2009 routine physical examination does not note any current or past left foot problems and found the Veteran's feet to be normal: "Pedal pulses present bilat, color pink, no noted deformities or calluses." The Board acknowledges that 38 U.S.C. § 1154(b) provides that in the case of a veteran who engaged in combat, satisfactory lay evidence shall constitute sufficient proof of an in-service injury or disease if consistent with the circumstances of such service, even when there is no official record that such injury or disease occurred. Here, cold weather exposure has already been conceded but the VA examiner found no current disability related to that exposure. There is no probative medical opinion to the contrary. In sum, as the preponderance of the probative evidence is against finding that the Veteran had a current foot disability that was etiologically related to active service, service connection is not warranted on a direct basis. Service connection is also not warranted on a presumptive basis in the absence of probative evidence that neuropathy of the left foot was present within one year of his discharge from active duty service. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the Appellant's claim, the doctrine does not apply. 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). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Jesteadt, 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.