Citation Nr: 21007133 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-10 069 DATE: February 8, 2021 ORDER Entitlement to service connection for cold injury residuals of the upper and lower extremities is denied. Entitlement to service connection for coronary artery disease (CAD), to include as secondary to cold injury residuals and/or a respiratory disability, is denied. FINDINGS OF FACT 1. There is no nexus between the Veteran’s current restless leg syndrome and arthritis of the bilateral upper and lower extremities and his in-service cold weather injury. 2. There is no nexus between the Veteran’s current CAD and his in-service cold weather injury, and he is not service-connected for cold injury residuals or a respiratory disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for cold injury residuals are not met. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a CAD, to include as secondary to cold injury residuals and/or a respiratory disability, are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1954 to November 1957 and he is appealing a Department of Veterans Affairs (VA) Regional Office (RO)’s denial of the aforementioned claims, as reflected in a September 2015 rating decision. In June 2018, the Veteran testified at a Board of Veterans’ Appeals (Board) hearing before the undersigned. The Board thereafter remanded the appeal in September 2018, February 2020, and July 2020. Service Connection Service connection may be established for a disability resulting from injury or disease incurred during active service. 38 U.S.C. §§ 1110, 1131. 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(d). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a), including arthritis and cardiovascular disease, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. § §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a disease listed in 38 C.F.R. § 3.309 (a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). The showing of chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). A claimant “can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a).” Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In addition to the elements of direct service connection, service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). 1. Entitlement to service connection for cold injury residuals is denied. 2. Entitlement to service connection for CAD, to include as secondary to cold injury residuals and/or a respiratory disability, is denied. The Veteran seeks service connection for CAD and residuals from exposure to cold weather in Korea, endorsing pain, numbness, and tingling in his body and an intolerance to cold temperatures. See December 1956 letter from the Veteran to his spouse; July 2015 VA 21-4138; March 2016 Correspondence; June 2018 Board Hearing Transcript (Tr.) at 5, 10, 8, and 12. He also asserts his CAD is secondary to cold injury residuals and/or a respiratory disability. Regarding direct service connection, the Veteran demonstrates a current disability, as he has been diagnosed with CAD and arthritis in the bilateral hands and feet as well as restless leg syndrome. See April 2020 VA examination report. Thus, element one is met. Regarding the second element, in-service incurrence of a disease or injury, the majority of the Veteran’s service treatment records have been reported as unavailable, as they are presumed to have been among the treatment records destroyed in the 1973 fire at the federal repository of service records. Under such circumstances, VA has a heightened obligation to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Further, attempts to obtain any of the Veteran’s separately stored inpatient hospitalization records for frostbite have been unsuccessful, and therefore, the only available service treatment record is the Veteran’s separation medical examination report, which notes normal skin, lymphatics; upper extremity; lower extremity; feet; abdomen examinations; and no identifying body marks or scars, and contains no indication of an in-service hospitalization for frostbite. Nevertheless, the Veteran, his family members, and fellow service members are competent to recount the Veteran’s in-service accounts of cold weather exposure and pneumonia and have done so throughout the record, and the Board finds their reports credible. See December 2011 Correspondence; December 2011 Service Letter from Veteran; July 2015 VA Form 21-4138; March 2016 Correspondence; June 2018 Correspondence; see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). As such, element two is met as to in-service injury, namely a cold weather injury and in-service pneumonia. For the third and final element, nexus, there are competing opinions regarding the claims. In favor of the claims are two opinions dated in July and September 2014 from T.C., D.O., who acknowledges the Veteran’s in-service severe cold weather exposure and states he “now has problems with his legs and feet” due to the same, and that his cold weather injury “further damaged his post pneumonia lungs,” resulting in his shortness of breath, potentially reflective of heart disease. See July and September 2014 Private treatment letters. As noted in the September 2018 remand, this opinion is too vague as to the nature of his current cold injury disorder, and also contains no rationale for its ultimate conclusion; accordingly, these opinions are afforded no probative value regarding medical nexus. See Obert v. Brown, 5 Vet. App. 30, 33(1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). Against the claim for cold injury residuals is the opinion of the April 2020 VA examiner, who opined that the Veteran’s symptoms were not related to service and reasoned that the Veteran’s symptoms were subjective, there was no objective evidence of a chronic condition, and his service treatment records were absent for complaints of or treatment for a cold injury or frostbite. As noted in the most recent remand, the Board finds this examination to be inadequate, amongst other inadequacies, because despite the Board’s instruction to concede an in-service cold injury, the examiner did not. Also against the claim for cold injury residuals is the opinion of the October 2020 VA examiner, who conceded an in-service cold injury and pneumonia but found no nexus between that injury and the Veteran’s current disabilities. The examiner provided a robust rationale in noting: the Veteran’s in-service reports of pneumonia reported during basic training preceded the Veteran’s conceded in-service cold exposure in Korea, and thus was unrelated to the Veteran’s cold injury or any residuals; the separation examination was negative for evidence of frostbite, and was significant in that any exposure severe enough to cause frostbite would have been evident at the time of the event, or proximate to it and therefore demonstrated at separation; and it was medically improbable that there would be no evaluation or treatment for cold injury/frostbite in post-service treatment records in the decades prior the initial filing of his claim. Additionally, the examiner noted that the Veteran was diagnosed with mild osteoarthritis of the hands and feet per an April 2020 x-ray and if the osteoarthritic changes were due to frostbite over 60 years ago, it would have presented more severely and earlier in time. The examiner further opined that the Veteran’s reported tremors and twitches were due to a neurologic condition and not frostbite, noting restless leg syndrome as a neurologic condition, and the VA treatment records noting a prescription of Sinemet for tremors, further supporting the etiology as that of a neurologic condition not associated with a cold weather injury. Regarding the Veteran’s reported sensation of hypothermia and reported involvement of the legs, arms, abdomen, and chest, the examiner stated that these symptoms were not consistent with remote cold exposure, noting “hypothermia inside” is not an accepted residual of frostbite. He noted that distal appendages are the most affected in frostbite, and the legs, arms, abdomen and chest are not considered susceptible to frostbite, in the absence of ongoing physical evidence, and there was no basis in the pathophysiology of frostbite to support such a claim. Regarding numbness and tingling, the examiner remarked that they were not present at separation and would have almost certainly been noted had there been significant frostbite. He continued by stating if it were as bad as the Veteran indicated, he would have sought medical attention much sooner as the symptoms would have become unbearable over time. The examiner conceded that these symptoms can stem from frostbite, but there was no medical evidence to support that it happened during the Veteran’s service. The examiner further reasoned that had there been frostbite severe enough to have caused any of the veteran’s claims, it would have been evident through physical examination during service, proximate to service, or even remote from service, and that there would have been physical changes to his skin, such as blisters, flaking skin, and necrosis, evident both during service or at separation, which was not present in this case. The examiner supported his rationale by citing Mayo Clinic treatise evidence, and concluded by opining that even though cold exposure is conceded, there were no physical signs of frostbite of the hands and feet; the absence of which almost certainly precluded any other involvement to cold exposure, noting the Veteran’s claim was not supported in the absence of physical evidence of frostbite during or proximate to his service. As indicated above, the Board finds this VA examiner’s opinion highly probative, as the examiner has considered the entire relevant medical history and provided a thorough rationale with supporting data as well as reasoned medical explanations. Regarding nexus and CAD, there is one probative opinion against the claim. Specifically, the April 2020 VA examiner opined that it was less likely than not that the Veteran’s CAD was due to an in-service cold weather injury. In support of this opinion, the examiner highlighted that there was no scientific evidence that a cold exposure leads to atherosclerosis of the coronary arteries, which is the cause of CAD. He noted Dr. T.C.’s report, but emphasized there was no explanation as to how pneumonia could damage the Veteran’s lungs prior to his service in Korea, as pneumonia is treated by antibiotics and would have resolved without sequelae and was not considered a chronic condition, thereby precluding any nexus to CAD. The VA examiner further emphasized that residuals of cold exposure could result in vasospasm with subsequent exposure to cold, but this affected the venous circulation in the peripheral areas of the body, such as the hands and feet, and had no bearing on the coronary arteries. Finally, the April 2020 VA examiner cited to treatise evidence in support of his opinion. The Board finds this VA examiner’s opinion highly probative, as the examiner has considered the entire relevant medical history and provided a thorough rationale with supporting data as well as reasoned medical explanations. Moreover, the Board finds that there has been substantial compliance with its prior remand directives, despite the October 2020 VA examiner not commenting on the April 2020 VA examiner’s statement that residuals of cold exposure can result in vasospasm that affects venous circulation to peripheral areas of the body, as requested in addressing cold injury residuals. This is because the Board’s prior request to comment on that statement was in error, as the examiner’s comment was in relation to the etiology of CAD in discussing coronary arteries as detailed immediately above and is thus not relevant to cold injury residual discussion. There are no other competent opinions of record. To the extent that the Veteran asserts that his current disabilities and symptoms are the result of his active duty service, the Board finds that he is not competent to do so, as the determination as to the etiology of a residuals of cold weather injury and CAD is a complex medical question beyond the ken of a layperson. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Moreover, absent any in-service findings in relation to the heart, hands or feet, there is no combination of manifestations sufficient to identify arthritis or cardiovascular disease in service to allow for service connection based on continuity of symptomatology. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker, 708 F.3d 1331. As such, the preponderance of the evidence is against the claims, the benefit of the doubt doctrine does not apply, and direct service connection is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Finally, as the Veteran is not service-connected for residuals of a cold injury nor a respiratory disability, his claim for CAD as secondary to residuals of a cold injury or a respiratory disability must be denied. 38 C.F.R. § 3.310. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. J. Rogers, 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.