Citation Nr: 21075506 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 09-31 982 DATE: December 20, 2021 ORDER Entitlement to service connection for right hand frostbite residuals is granted. Entitlement to service connection for left hand frostbite residuals is granted. FINDING OF FACT The Veteran's diagnosed bilateral hand disability is related to frostbite sustained during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right hand frostbite residuals have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for left hand frostbite residuals have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1960 to September 1963, with additional service in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran's claims file. In a June 2020 Decision, in pertinent part, the Board denied the claims of entitlement to service connection for right and left hand frostbite residuals. In a July 2021 Order, the Court of Appeals for Veterans Claims (the Court) vacated the June 2020 Board decision to the extent that it denied the instant claims, and remanded the case to the Board for adjudication consistent with the terms of the July 2021 Joint Motion for Partial Remand (JMPR). Service Connection 1. Entitlement to service connection for right hand frostbite residuals 2. Entitlement to service connection for left hand frostbite residuals The Veteran contends that his bilateral hand condition is related to his active service. Specifically, he contends that while on guard duty in Korea, his fingers became white and swollen and that he lost feeling. The Veteran further contends that he has experienced joint pain in his fingers and a lack of sensitivity since 1962. 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; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has a current diagnosis of degenerative arthritis of both hands as well as an old, healed fracture of the left index finger. See December 2016 VA examination. Accordingly, the first element of a current disability is met. The Veteran's personnel records show that the Veteran served in Korea, to include during the winter. The Veteran's service treatment records (STRs) are silent for complaints of, treatment for, or diagnosis of frostbite, a cold injury, or any hand condition during the Veteran's active service. However, the Veteran has reported that he did not report the frostbite, or otherwise seek medical attention during service, for fear of losing his "jump status and wings". See Third Party Correspondence, submitted November 22, 2021. Additionally, the Veteran submitted a statement from a fellow servicemember, R.S., in November 2021. R.S. reported that he and the Veteran's duties required them to patrol in very cold weather, in open vehicles. He reported that the snow was heavy and wet, would stick to their hands and faces, and freeze. See Email Correspondence, submitted November 22, 2021. While his STRs are negative for any diagnoses of or treatment for frostbite of the hands, his lay reports of cold exposure are accepted as credible, as they are consistent with the circumstances of his service and are corroborated by a fellow servicemember. Moreover, as a layperson, he is competent to report such observable symptomatology. Based on the foregoing, the Board finds that the evidence supports a finding that the Veteran suffered frostbite during service. Therefore, the second element, an in-service incurrence, is also met. The remaining inquiry for the Board is whether the Veteran's diagnosed bilateral hand disability is related to frostbite sustained during service. The Veteran was afforded a VA examination in December 2016. However, in a June 2020 decision, the Board found that the December 2016 examination was inadequate for adjudicative purposes. Accordingly, the examination has no probative value and will not be discussed further herein. In November 2016 and July 2017, the Veteran's private physician noted that the Veteran has a number of issues he believes to be service-related, including numbness in the fingers and toes, which started after having frostbite in service and has since persisted. The private physician opined that this issue more likely than not is related to the Veteran's activities in service. The private physician further asserted that since the Veteran's numbness started in his early twenties, it would not be related to his diabetes that developed later in life. In February 2018, another private physician, who evaluated the Veteran for bilateral hand pain, noted that the Veteran experienced frostbite in service and had weakness in both of his hands. The private physician found that the Veteran has multiple musculoskeletal conditions that are related to physical trauma from the Veteran's past and noted that x-rays and a nerve study of both hands revealed evidence of frostbite damage, evidence of trauma, severe arthritis, and neuropathy. Most recently, the Veteran submitted a private medical opinion from Dr. S.M. in November 2021. Dr. S.M. indicated that the Veteran sustained significant frostbite injury as a result of his repetitive exposure to the below-zero temperatures on the Korean peninsula in 1962-63 during the performance of his duties. He added that clinically, frostbite arthritis resembles regular arthritis and can appear years after the initial injury. Dr. S.M. also noted that only recently have medical studies addressed the long term effects of frostbite; citing medical literature from the Norwegian and Swedish Defense Forces Medical establishments. Dr. S.M. found that the symptoms of the Veteran's bilateral hand disability were consistent with the cited medical literature and concluded that it was more likely than not that the Veteran's current condition was related to frostbite during service. The Board also acknowledges that evidence weighing against the claim includes an October 2017 Veterans Health Administration (VHA) advisory medical opinion. At that time, a VA specialist opined that it was unlikely that the Veteran had any hand disability that had its onset during service or is related to any in-service injury, including any frostbite or cold-weather exposure. The VA specialist explained that while the Veteran reports cold exposure in Korea with persistent stable numbness of the fingertips from that date, there is no evidence in his STRs of any complaints, diagnosis, or treatment of cold injuries of the hands. However, as noted above, the Board assigns high probative value to the Veteran's reports that he did not seek treatment for frostbite during service. Additionally, as the October 2017 VHA opinion relies substantially, if not wholly, on the absence of STRs showing treatment for frostbite during service to determine that the condition is not related to service, the opinion is of little probative value. Here, the specialist did not explain why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment and documented symptoms was otherwise medically significant. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). The Board finds that collectively, the private medical opinions are the most probative evidence of record, as they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, as the December 2016 VA medical opinion and the October 2017 VHA medical opinion are both inadequate for adjudicative purposes, there is no competent medical opinion to refute the findings of the private medical opinions of record. Based on the foregoing, the Board finds that the Veteran's diagnosed bilateral hand disability is related to frostbite sustained in service. Accordingly, service connection is warranted for frostbite residuals of the right and left hand. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.