Citation Nr: 21007667 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 12-33 851A DATE: February 10, 2021 ORDER The issue of service connection for a cervical spine disability is dismissed. Service connection for residuals of frostbite of the hands is denied. Service connection for residuals of frostbite of the feet is denied. REMANDED The issue of service connection for a disability in the left upper extremity is remanded. The issue of service connection for a disability in the right upper extremity is remanded. The issue of service connection for a disability in the left lower extremity is remanded. The issue of service connection for a disability in the right lower extremity is remanded. FINDINGS OF FACT 1. In a September 2020 rating decision, the Regional Office (RO) granted service connection for a cervical spine disability; the Veteran has not appealed the rating or the effective date assigned to the disability. 2. The preponderance of the evidence is against a finding that the Veteran has had residuals of frostbite of the hands and feet at any time during or proximate to the pendency of his claims. CONCLUSIONS OF LAW 1. The issue of service connection for a cervical spine disability is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.1302. 2. The criteria for service connection for residuals of frostbite of the hands are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for residuals of frostbite of the feet are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1980 to November 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) RO. In February 2016 and April 2019, the Board remanded the appeal for additional development. The claims of service connection for disabilities in the right and left upper and lower extremities have been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The issue of service connection for a cervical spine disability. In a September 2020 rating decision, the RO granted service connection for a cervical spine disability, which was previously on appeal after being denied by the RO’s October 2011 rating decision. The Veteran has not appealed either the rating or the effective date assigned to this disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Accordingly, as there remains no allegation of error of fact or law for appellate consideration, the issue of service connection for a cervical spine disability is dismissed. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Service connection for residuals of frostbite of the hands. 2. Service connection for residuals of frostbite of the feet. In March 2011, the Veteran submitted a VA 21-526 (application for compensation or pension) seeking service connection for frostbite of the hands and feet. The evidence of record does not show that residuals of frostbite of the hands and feet were diagnosed at any time during or proximate to the pendency of the appeal period. See VA treatment records (January 2010 to January 2020); private treatment records (February 2013); VA examination report (September 2020). Specifically, a September 2020 VA examination report shows that a VA examiner reviewed the Veteran’s claims, interviewed him, and indicated that he did not have or ever have cold injury residuals. The examiner reasoned that the Veteran’s STRs did not show a diagnosis of or findings of cold injuries. The examiner indicated that the Veteran’s reported symptoms were attributable to other conditions that were not related to cold injuries. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the Federal Circuit held that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.” Id. at 1367-69. The evidence does not support that the Veteran’s reported symptoms, such as numbness in his upper and lower extremities, has reached the level of a functional impairment of earning capacity. Although the Veteran attributes his reported symptoms, such as numbness in his upper and lower extremities, to residuals of frostbite, the issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Furthermore, the September 2020 VA examiner attributed the Veteran’s symptoms to other diagnoses than residuals of frostbite, which is discussed below. The evidence shows that the Veteran has not had residuals of frostbite of the hands or feet at any time during or proximate to the pendency of his claims. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 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; 38 C.F.R. § 3.303. Thus, a necessary element for establishing any claim for service connection is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As indicated above, the Veteran filed his claims of service connection for residuals of frostbite of the hands and feet in March 2011; however, there is no bright line rule prohibiting consideration of evidence dated prior to the claims, and the Board has considered such evidence. See Romanowsky, 26 Vet. App. at 293. The preponderance of the evidence is against the claims of service connection for residuals of frostbite of the hands and feet, the benefit-of-the-doubt doctrine is not for application, and the claims are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The issue of service connection for a disability in the left upper extremity is remanded. 2. The issue of service connection for a disability in the right upper extremity is remanded. The Veteran seeks service connection for disabilities in the right and left upper extremities, to include neuropathy, on a direct and secondary service connection basis. The Veteran’s service-connected disabilities include a low back and cervical spine disabilities. In September 2020, the Veteran was afforded VA examinations. The examiner diagnosed bilateral carpal tunnel syndrome and degenerative changes of the hands. The examiner found that the Veteran did not have a peripheral nerve disability, based on electrodiagnostic and EMG testing. The examiner opined that the Veteran’s carpal tunnel disability was less likely than not related to service because there were no findings or diagnosis of carpal tunnel disability during service. The examiner also found that the Veteran’s carpal tunnel disability was less likely than not caused or aggravated by his service-connected low back disability, as carpal tunnel syndrome is a compression of the median nerve at the wrist. The September 2020 opinion is incomplete, as the examiner did not address whether the Veteran’s degenerative changes of the hands were related to his military service. Additionally, there is no opinion of record that addresses whether the Veteran’s carpal tunnel syndrome and degenerative changes of the hands is caused or aggravated by his service-connected cervical spine disability. Therefore, a remand is necessary to address the Veteran’s claims of service connection for disabilities in the left and right upper extremities. 3. The issue of service connection for a disability in the left lower extremity is remanded. 4. The issue of service connection for a disability in the right lower extremity is remanded. The Veteran seeks service connection for disabilities in the right and left lower extremities, on a direct and secondary service connection basis. The Veteran’s service-connected disabilities include a low back and cervical spine disabilities. The Veteran’s service treatment records (STRs) show that he reported numbness and radiating pain in his lower extremities, associated with back pain. See STRs (June 1981, January 1985, May 1986). In September 2020, the Veteran was afforded VA examinations. The examiner diagnosed degenerative changes of the feet, bilateral hammer toes, and hallux valgus. The examiner found that the Veteran did not have a peripheral nerve disability, based on electrodiagnostic and EMG testing. The examiner provided an opinion explaining that the Veteran did not have current lower extremity peripheral nerve disability and indicated that the Veteran did not have lower extremity peripheral nerve disability that was caused or aggravated by his service-connected lower back disability. The September 2020 opinion is incomplete, as the examiner did not address whether the Veteran’s degenerative changes of the feet, bilateral hammer toes, and hallux valgus were related to his military service. Furthermore, although the examiner found that the Veteran did not have current lower extremity peripheral nerve disability that was caused or aggravated by his service-connected low back disability, the examiner did not address the Veteran’s STRs where he reported numbness and radiating pain in his lower extremities associated with his low back disability. Therefore, a remand is necessary to address the Veteran’s claims of service connection for disabilities in the left and right lower extremities. The matters are REMANDED for the following action: Refer the claims file to a physician for opinions as to the Veteran’s claims of service connection for disabilities in the left and right upper and lower extremities. The Veteran does not need to be examined, unless the physician determines it is necessary. (a.) The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s carpal tunnel syndrome and degenerative changes of the hands and feet, bilateral hammer toes, and hallux valgus, had their onset in service or are related to service. The physician should address the Veteran’s STRs where he reported numbness and radiating pain in his lower extremities. (b.) The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected cervical spine disability caused or aggravated his carpal tunnel syndrome and degenerative changes of the hands. (c.) The physician should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected low back disability caused or aggravated his degenerative changes of the hands and feet, bilateral hammer toes, and hallux valgus. The physician should address the Veteran’s STRs where he reported numbness and radiating pain in his lower extremities associated with his low back pain. The physician must provide a rationale for each opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.