Citation Nr: 21009670 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-38 651 DATE: February 23, 2021 ORDER Service connection for cold injury residuals to the feet is denied. REMANDED Entitlement to service connection for a right hip condition secondary to loss of use of both lower extremities, residuals of abdominal aneurysm repair surgery is remanded. Entitlement to service connection for a lumbar spine condition secondary to loss of use of both lower extremities, residuals of abdominal aneurysm repair surgery is remanded. FINDING OF FACT The weight of the evidence is against finding that the Veteran had cold injury residuals to the feet that began during active service or was otherwise related to an in-service injury or disease.   CONCLUSION OF LAW The criteria for service connection for cold injury residuals to the feet are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1957 to April 1960. He died in July 2019. The appellant is his surviving spouse and has been substituted as the claimant in this appeal. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in March 2018 and June 2020 when it was remanded for further development. Service Connection Service connection will be granted if it is shown that the Veteran has a disability resulting from personal injury incurred or disease contracted in the line of duty, or for aggravation of a pre-existing injury incurred or disease contracted in the line of duty, during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may be service connected if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection requires evidence of: (1) a current disability; (2) a disease; injury, or event in service; and (3) a causal link (nexus) between the claimed disability and the disease, injury, or event in service and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may 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 is any evidence not requiring that the proponent have specialized education, training, or experience. For example, 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). This may include some medical matters, such as describing observable symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cold Injury Residuals to the Feet The appellant is seeking service connection for cold injury residuals to the feet. In a March 2014 statement, the Veteran stated that in the spring of 1959 a blizzard occurred at Pease AFB in New Hampshire. During a white out he got turned around and became lost. He wandered in the snow fog and became disoriented. He dug a small tunnel in the snow and climbed in but left his feet sticking out. He fell asleep and was found by a truck driver the next day. Ice formed on his feet and he awakened in the base hospital and heard comments of amputating both feet due to gangrene. He stated that skin was taken from his buttocks to replace dead skin on his feet. He stayed in the hospital for three months. He had been treated for dead skin occasionally and both feet currently had nerve damage. At his December 2017 hearing before the Board, the Veteran again indicated that he got frostbite to his feet after getting lost in a blizzard in 1959. Since that event, he had experienced nerve damage in both of his feet and had skin problems on both feet. The record reflects the RO received notice from the National Personnel Records Center in April 2014 that the Veteran’s service treatment and service personnel records were “fire related.” In such a situation, VA has a heightened obligation to assist the claimant in the development of his case, to explain all findings and conclusions, and to consider carefully the benefit of the doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In September 2007 VA treatment records, it was noted that the Veteran had a chronic open wound in the left foot about 2 inches long. November 2007 records noted peripheral edema and a fungal region on the left inner aspect of the foot. Past medical history includes a notation of tinea. In December 2010 VA treatment records, the Veteran presented with a rash on his legs following knee replacement surgery. He was assessed with nummular dermatitis that was resolving. In February 2013 VA vascular surgery records, a physical examination showed no rashes in the skin. In June 2014, August 2015, and July 2017 VA treatment records, it was indicated that there were no rashes or itching of the skin. September 2017 VA treatment records note treatment for tinea, but on his buttocks. He also had a rash on his right ankle which was noted to be contact dermatitis. VA treatment records from October 2017 and June 2018 noted a rash on the left ankle thought to be allergic contact dermatitis treated with clobetasol and improved. An August 2018 VA examiner stated that the Veteran did not have or had ever been diagnosed with any cold injuries. The examiner indicated that the Veteran had arthralgia or other pain in both feet, and there was no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions. There were mild degenerative changes in the feet, no acute bony processes. The examiner indicated that review of the currently available medical records failed to produce any documentation of, treatment for, or diagnosis of cold injury residuals to the feet. Feet x-ray results failed to show any cold injury residuals. The Board’s June 2020 remand indicated that the August 2018 VA examiner did not discuss the significance, if any, of the VA treatment records from September 2007 and November 2007. Therefore, another VA opinion was needed. A VA medical opinion was provided in June 2020. The examiner reviewed the claims file and a copy of the June 2020 remand. The examiner indicated that the chronic disabilities of the bilateral feet that existed during the appeal period prior to the Veteran’s death were mild degenerative changes in the feet, bilateral lower extremity peripheral vascular disease, bilateral lower extremity intermittent claudication, bilateral lower extremity deep vein thrombosis, and tinea. The examiner noted that a specific cold injury residual had not been diagnosed in the record. The examiner opined that it was less likely than not that any disability was a result of a cold injury to the feet during service, to include frostbite to the feet in 1959 during a severe blizzard. The examiner indicated that the diagnosed conditions were unlikely to be related to any cold injury and were primarily related to the Veteran’s peripheral vascular disease of the bilateral legs, which was the result of a history of chronic smoking, status post total knee replacement, and fungal infections. Regarding the chronic open wound in the left foot noted in the September 2007 VA treatment records, the records indicated that there was only one mention of such a lesion, and on follow up there were no further problems. VA treatment records from November 2009 showed no wounds, pressure ulcers, or other skin problems. The Veteran did have dermatitis and tinea and was prescribed Fluocinonide (as he indicated in his March 2014 statement), but the examiner pointed out that December 2010 VA dermatology treatment records indicated that he was treated for rashes on his legs following a knee replacement. October 2017 VA treatment records noted allergic contact dermatitis on his left ankle. The examiner concluded that the main cause of the Veteran’s skin issues in his legs was his peripheral vascular disease. The Veteran, as a layperson, was competent to describe the symptoms of his bilateral feet. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the record does not indicate that the Veteran was or that the appellant is competent through expertise or knowledge to conclude that the Veteran’s disabilities of the bilateral feet were incurred as a result of cold injuries experienced during service or were otherwise related to service. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). That type of medical determination is made through the use of clinical evaluations by a medical professional with the specialized education, training, or experience to offer an opinion regarding the etiology of a disease. Regarding the June 2020 VA medical opinion, it is based on a thorough review of the claims file and consideration of the Veteran’s statements regarding having frostbite in service and his symptoms after service. It is also based on consideration of the post-service medical evidence. While considering the Veteran’s contentions, the VA physician placed greater emphasis on the lack of evidence of cold injury residuals following service. The Board therefore finds that the June 2020 VA opinion that found it less likely than not that the Veteran had cold injury residuals that were incurred in or otherwise caused by service to be persuasive. The June 2020 VA opinion provided a clear rationale and reflected further consideration of the evidence of record, and ultimately concluded that the medical evidence did not support that the Veteran’s bilateral foot disabilities were due to his in-service cold injury. Accordingly, the Board places great weight of probative value on this opinion and concludes that the preponderance of the evidence is against the appellant’s claim of service connection for cold injury residuals of the feet on a direct basis. 38 C.F.R. § 3.303(a). The appellant may still be entitled to service connection for cold injury residuals of the feet if all of the evidence establishes that the Veteran’s disorder was incurred in service. 38 C.F.R. § 3.303(d). However, in the absence of evidence tending to show that the Veteran’s post service bilateral feet disabilities were incurred due to in-service cold injuries, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran’s bilateral feet disabilities were otherwise attributable to service. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.303(d). In summary, as the preponderance of the evidence is against the appellant’s claim for service connection for cold injury residuals of the feet, the benefit-of-the-doubt standard of proof does not apply, and the claim is denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND Right Hip Condition and Lower Back Condition Regarding the appellant’s claim for service connection for a right hip condition and lower back condition, the June 2020 remand directed that a medical opinion be obtained regarding whether the Veteran had a chronic right hip disability and lumbar spine disability that was at least as likely as not caused or aggravated by his service-connected loss of use of both lower extremities, residuals of abdominal aneurysm repair surgery. An opinion was provided in June 2020. The examiner indicated that it was less likely than not that a right hip condition was caused or aggravated by the service-connected residuals of abdominal aneurysm repair surgery. The examiner stated that the Veteran was diagnosed with degenerative joint disease, which was not caused by the residuals of aneurysm surgery. The examiner referenced a letter from Dr. M.B. in August 2015 who indicated that hip pain was due to lack of blood supply and claudication from the surgery, therefore it was not due to causation or aggravation of degenerative joint disease. Since the VA examination in August 2018 did not indicate any significant right hip disability and that range of motion was normal and without pain, there was no aggravation. The examiner also indicated that it was less likely than not that a lumbar spine disability was caused or aggravated by the service-connected residuals of abdominal aneurysm repair surgery. The examiner stated the disease was age related. While he had reported that back pain started after surgery, he had multiple co-morbidities accounting for back pain including his knee condition needing total knee replacement. However, VA treatment records from December 2018 indicate that the Veteran remained in a wheelchair due to hip pain after the abdominal aortic aneurysm repair. The examiner did not comment on these records and did not explain why the lack of blood supply and claudication in the right hip did not cause or aggravate the Veteran’s right hip condition. The examiner also did not explain why the Veteran’s lumbar spine disability was age related and did not provide a rationale for the finding that a lumbar spine disability was less likely than not aggravated by the service-connected residuals of abdominal aneurysm repair surgery. Remand for an addendum medical opinion addressing these deficiencies is needed. The matters are REMANDED for the following action: Return the claims file to the VA examiner who provided the June 2020 VA hip and back medical opinions for an addendum opinion. If the VA examiner who provided the June 2020 opinions is not available, then forward the Veteran’s claims file to another appropriate specialist to obtain the below requested medical opinion. Following a review of the Veteran’s claims file and a copy of this remand, the examiner must provide an opinion and a clear rationale as to: a) Whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that a i) right hip disability, and a ii) lumbar spine disability were caused by the Veteran’s loss of use of both lower extremities, residuals of abdominal aneurysm repair surgery. b) Whether it is at least as likely as not (i.e., whether there is a 50 percent or better probability) that a i) right hip disability, and a ii) lumbar spine disability were aggravated (where aggravation is any increase in severity beyond the natural progress of disability) by the Veteran’s loss of use of both lower extremities, residuals of abdominal aneurysm repair surgery. A complete rationale for all opinions must be provided. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bonnie Yoon, 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.