Citation Nr: 21014952 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 12-21 409 DATE: March 16, 2021 ORDER Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for osteoarthritis, left knee is denied. Entitlement to service connection for osteoarthritis, right knee is denied. Entitlement to service connection for frostbite residuals, bilateral feet, is granted. REMANDED Entitlement to service connection for a left wrist/hand disability is remanded. Entitlement to service connection for a right wrist/hand disability is remanded. Entitlement to service connection for vertigo/dizziness is remanded. FINDINGS OF FACT 1. The Veteran’s cervical spine disability is not etiologically related to service. 2. The Veteran’s left knee osteoarthritis is not etiologically related to service. 3. The Veteran’s right knee osteoarthritis is not etiologically related to service. 4. The evidence is in equipoise as to whether the Veteran has frostbite residuals of the bilateral feet that was caused by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not 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 knee osteoarthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. Resolving all doubt in favor of the Veteran, the criteria for service connection for frostbite, bilateral feet, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1961 to November 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2010 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2015 where the Veteran’s claims of service connection for hypertension and sleep apnea were dismissed. The Board, however, reopened and remanded claims of service connection for tinnitus, bilateral hearing loss, cervical spine disability, right and left knee disability, right and left ankle disability, right and left wrist disability, and vertigo. In addition, the Veteran’s claim for an initial compensable rating for left thumb fracture was remanded for further development. In an August 2019 decision, the Board granted service connection for bilateral hearing loss and tinnitus and denied service connection for right and left ankle disabilities. The Board also granted a 10 percent rating for the service-connected left thumb fracture. Therefore, these claims are no longer on appeal. In addition, an October 2020 rating decision granted service connection for arthritis of the right hand, claimed as broken thumb right hand and broken right long finger. Therefore, these claims are no longer on appeal. The Veteran’s remaining claims of service connection for right and left knee disability, right and left wrist disability, cervical spine disability, vertigo, and a bilateral foot disability due to frostbite residuals were remanded for additional development. The Board notes that the Veteran filed a motion to vacate the August 2019 decision which was denied by the Board in February 2021. In January 2021, the Veteran attempted to opt into the modernized appeal system for review of his claim of service connection for frostbite residuals by submitting a Decision Review Request: Board Appeal, VA Form 10182, Notice of Disagreement (NOD). However, his election was made more than 60 days after issuance of the October 2020 supplemental statement of the case (SSOC), and therefore was untimely. 38 C.F.R. §§ 3.2400, 3.2500, 19.2 Thus, the Veteran’s claim remains under the legacy system. Additionally, after issuance of the October 2020 SSOC, the Veteran submitted new evidence pertaining to his claim of service connection for vertigo that has not been considered by the RO; however, since this claim is being remanded for further development, the RO will have an opportunity to review the evidence in the first instance pursuant to 38 C.F.R. § 19.37 (a). Although the Veteran also submitted evidence and argument that pertain to his remaining claims, this evidence is duplicative of evidence already considered by the RO at the time of the October 2020 SSOC. Therefore, remand is not necessary for these claims on this basis. Service Connection Service connection may be granted for a 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 (a) (2018). To establish a right to compensation for a present disability, a Veteran 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 or aggravated during service, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may 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). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b). 1. Entitlement to service connection for a cervical spine disability. The Veteran seeks service connection for a cervical spine disability. In a September 2010 Statement in Support of Claim, the Veteran contended that he injured his neck in service when he was driving a truck that nose-dived into a hole. He reported that he broke his neck but was not diagnosed at the time. A review of the evidence shows that the Veteran received a VA examination for his cervical spine in November 2015 where he reported that his neck “got popped” during a 1963 accident. He reported that his neck got better but he started having trouble in 1986 on a piece of equipment that slid down a bank. He indicated that he was told then that he had an old fracture of the neck and he eventually had neck surgery in 2013 for ruptured discs. However, the examiner could not provide a diagnosis or medical opinion concerning the etiology of the Veteran’s neck disability since the Veteran did not obtain x-rays as requested by the examiner. Alternatively, in his May 2016 cervical spine examination, the Veteran was diagnosed with degenerative arthritis of the spine. The examiner found that it is less likely as not that the Veteran’s c-spine spondylosis was caused by or was a result of service because the condition was diagnosed in 2010 and STRs are silent for this condition. Similarly, in a September 2020 medical opinion, the examiner found that the Veteran’s degenerative arthritis of the spine was not related to service. The examiner reasoned that there were no neck conditions in service, and post-service records are silent for neck complaints until 1994 due to an injury. The examiner further found that the Veteran was found to have degenerative changes in his neck in 2010, which were not seen in the military, and are most likely due to general aging and wear-and-tear. Based on the above and remaining evidence, the Board finds that service connection is not warranted. The Board notes that service treatment records (STRs) are silent for complaints, treatment, or a diagnosis for a neck injury. However, in a December 2014 written statement from J.K., who stated that he served with the Veteran, he reported that the Veteran was in a carrier accident and hurt his knees, ankle, and neck. Thus, the Board finds the Veteran’s statement concerning an in-service injury to his neck credible. However, there is no evidence that supports the Veteran’s statement of having previously broken his neck. To the contrary, the evidence shows that in his November 2015 VA examination, the Veteran reported that his neck “got popped” during the 1963 accident. He stated that his neck got better but he started having trouble in 1986, more than two decades after his discharge from service. In addition, the objective evidence of record shows that the Veteran first began complaining of neck pain while at work in January 1994. Subsequent treatment records show no complaints or treatment to his neck until 2010 when his private clinician noted degenerative changes. The Board recognizes that in a December 2010 statement, the same private clinician stated that the Veteran’s arthritic changes throughout the cervical spine were related to service. However, the clinician did not provide a medical rationale to support his opinion. Therefore, the Board finds the opinion carries low probative value. To that end, the Board finds the most probative evidence of record are the opinions from the VA examiners as they all consistently found that the Veteran’s current neck disability was not related to service and supported their opinions with adequate rationale. In addition, despite the Board conceding the Veteran’s in-service neck injury, the VA medical opinions are consistent with the medical evidence and the Veteran’s own statement that show no complaints, treatment, or symptoms of neck pain until years after his discharge from service. Further, the September 2020 examiner concluded that the Veteran’s neck disability was most likely due to general aging and wear-and-tear and was not due to service. For these reasons, the Board finds the preponderance of evidence is against the claim as the evidence does not show that the Veteran’s current neck disability was caused, or is otherwise related to, his military service. As such, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim of service connection for a neck disability is denied. 2. Entitlement to service connection for osteoarthritis, left knee. 3. Entitlement to service connection for osteoarthritis, right knee. The Veteran seeks service connection for a right and left knee disability. In a September 2010 Statement in Support of Claim, the Veteran reported that he was involved in an incident in service where he was driving a truck that nose-dived into a hole. He contended that he hurt his knees during the incident. Service treatment records show the Veteran had a right knee contusion in service; however, there are no complaints, treatment, or diagnosis for his left knee. Post-service records show the Veteran received a VA examination for his knees in September 2011 where he was diagnosed with bilateral knee degenerative joint disease (DJD). However, the examiner found that the Veteran’s bilateral knee disability was less likely than not related to an injury in service that occurred over 40 years ago. The examiner acknowledged the claims file showed an injury to his right knee in April 1963, but nothing for his left knee. In addition, after examination of his right knee in 1963, x-rays were normal and subsequent records are silent for right knee complaints. The examiner found that DJD of the knees is more likely than not caused by many years of wear on his bilateral joints aggravated by increased body mass index. In a November 2015 VA knee examination, the Veteran reiterated that he injured both knees in an accident while in service. He reported his knees got better but were weak and he was placed on profile. He further reported that his knees improved but began swelling in 1984 and he began having cortisone shots in his knees. The Veteran also noted that he had bilateral knee arthroscopy in 1996 and 1997. As to the etiology of his current knee disability, the examiner indicated a diagnosis or opinion could not be provided since the Veteran did not have x-rays performed as requested. Alternatively, in a May 2016 medical opinion, the examiner found it less likely that the Veteran’s left or right knee osteoarthritis was caused by service as STRs are silent for this condition, and the condition began in 1997 and 1998 respectively. Similarly, in a September 2020 medical opinion, a different examiner also found that the Veteran’s right and left knee osteoarthritis were unrelated to service since the record shows the Veteran injured his right knee while at work, and he injured his left knee after slipping on ice. Based on the above and remaining evidence, the Board finds that service connection is not warranted. Although STRs are silent for a left knee disability, the Board has conceded injury to the Veteran’s knees based on the statement from J.K., mentioned above. Nevertheless, the evidence does not show that the Veteran’s bilateral knee osteoarthritis is related to his in-service knee injuries. As noted above, the May 2016 and September 2020 examiners both found that the Veteran’s current knee disabilities were caused or related to his post-service injuries and subsequent knee surgeries. Notably, treatment records from the Veteran’s former employer show that he strained his right knee in 1972; he had a right knee contusion in 1986, and right knee arthroscopy in 1998. Similarly, the evidence shows that the Veteran first complained of left knee pain in March 1997 when he reported pain after hunting for many hours. He also reported that he slipped on ice while in Michigan and somewhat twisted his left knee and it began to aggravate him again. The Board notes that evidence concerning the Veteran’s post-service knee injuries was not available to the September 2011 examiner; nevertheless, the examiner still concluded that DJD of the knees was not caused by service, but was more likely than not caused by wear and tear and the Veteran’s weight. The Board also recognizes that in a December 2010 written statement, the Veteran’s private clinician attributed the Veteran’s bilateral knee osteoarthritis to service; however, the examiner did not provide a rationale to support his opinion. Therefore, the Board finds the opinion carries low probative value. Moreover, the Veteran’s own statement is consistent with the objective evidence of record which shows that his knee pain began after service. This finding is evidenced in his November 2015 VA examination where the Veteran reported that his knees improved but began swelling in 1984 and he began having cortisone shots in his knees. Therefore, based on the above, the Board finds the preponderance of evidence weighs against the claim as the most probative evidence of record shows that the Veteran’s current right and left knee osteoarthritis was not cause by service, but was most likely due to injuries sustained after service requiring surgical intervention, and normal wear and tear. As such, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claims for service connection for right and left knee osteoarthritis is denied. 4. Entitlement to service connection for frostbite residuals, bilateral feet. In an October 2014 written correspondence, the Veteran contended that he sustained frostbite in service caused during a training expedition in Germany while standing in zero weather guarding an ammunition dump. The Veteran reported that his toes were frostbitten with numbness and that he had little feeling in his toes and feet. He indicated that he was diagnosed with frostbitten feet in Germany. In an August 2015 medical opinion, a private examiner found that it is at least as likely as not that the Veteran’s cold weather injury residuals were related to the Veteran’s guard duty in Germany. The examiner noted that the Veteran has symptoms of prolonged capillary filling in his toes, decrease in touch sensation in toes, bilateral onychomycosis of the toenails, and numbness and pain in his upper and lower extremities. The examiner explained that these symptoms are signs of chronically poor peripheral perfusion, as would occur after repeated cold exposure. The examiner supported her position with medical literature and noted that she reviewed the Veteran’s medical records and personnel files. Alternatively, in a November 2015 VA medical opinion, the examiner found no signs or symptoms to the Veteran’s right or left foot and concluded that there was insufficient evidence to warrant or confirm a diagnosis. In a May 2016 VA foot examination, the examiner found that the Veteran has bilateral toenail deformities related to fungal infection and specifically noted it was unrelated to his claimed cold injury. The examiner concluded that there is insufficient evidence to warrant or confirm a diagnosis on examination of cold injury/frostbite or residuals. Similarly, in a September 2020 examination, the examiner found no objective evidence of a current right or left foot condition. In addition to the above conflicting opinions, the Board has also considered other evidence which includes a September 2010 private treatment record that shows the Veteran had frostbite sequelae. Additionally, in a November 2016 statement, the Veteran’s private examiner noted the Veteran had secondary injuries from frostbite which include loss of acral sensation in all toes, decrease in capillary circulation in eight toes, decrease in capillary filling in his toes, decrease in light touch sensation in his toes, and onychomycosis in the toenail and frostbite in the aerial regions of the feet. Further, in a December 2014 Statement in Support of Claim, the Veteran reported that his frostbite occurred in January 1963. Notably, military personnel records confirm the Veteran was in Germany from April 1962 to November 1963. Moreover, in a December 2014 statement from J.K., the former servicemember stated that he could see the Veteran’s feet swelling, changing color, and the Veteran would state he had no feeling in his toes. Given the above, the Board finds the evidence is in equipoise as to whether the Veteran has frostbite residuals and whether the condition was caused by service. Therefore, the Board resolves all doubt in favor of the Veteran and finds that service connection for residuals of frostbite, bilateral feet, is granted. REASONS FOR REMAND 1. Entitlement to service connection for vertigo/dizziness is remanded. The Veteran seeks service connection for vertigo. STRs show the Veteran had dizzy spells in hot weather. A December 2003 post-service record shows a diagnosis of positional vertigo. In December 2015, the Veteran received a VA examination for ear conditions in which the examiner found that he could not confirm a diagnosis of an acute or chronic peripheral vestibular disorder, nor were there signs or symptoms of Meniere’s disease. Similarly, the examiner in the Veteran’s September 2020 ear conditions examination also found no diagnosis for an ear or vestibular condition. Alternatively, in a November 2016 private medical opinion, the Veteran’s private physician stated the Veteran has Meniere’s disease associated with dizziness, tinnitus, and hearing loss. Given that the Veteran has a diagnosis of vertigo and he is service connected for hearing loss and tinnitus, the Board finds remand is warranted to reconcile the conflicting opinions and to clarify the nature and etiology of his asserted disorder manifested by dizziness. 2. Entitlement to service connection for a left wrist/hand disability. 3. Entitlement to service connection for a right wrist/hand disability. In a May 2011 Statement in Support of Claim, the Veteran reported that he injured his hands during an escape and evasion course in service. STRs are silent for hand injuries in service; however, a December 2014 written correspondence includes a statement written from J.K., who indicated he served with the Veteran, where he confirmed that the Veteran was tortured after being captured during the training course. J.K. further stated that he saw the Veteran’s hand, fingers, thumbs, and wrists hurt from the capture course. Therefore, the Board finds the Veteran’s statement credible and concedes an in-service injury to his wrists and/or hands. Post-service records show the Veteran received an examination of his wrists in September 2020 where the examiner diagnosed the Veteran with gout of the right wrist and found no diagnosis for the left wrist. The examiner found the Veteran’s statement credible regarding his in-service injury to his wrists during the training course; however, the examiner concluded that his right wrist disability was not related to service. The examiner reasoned that STRs do not include an abnormal diagnosis related to the right wrist, and that records show the Veteran sprained his right wrist in 1974 while at work outside of the military. Therefore, his right wrist gout development is not related to service. The Board notes, however, that in a November 2016 medical opinion, associated with the record in May 2017, the Veteran’s private physician found that the Veteran’s right carpal tunnel ligament repair was related to his right thumb injuries. The physician also noted diagnoses of bilateral wrist strain and indicated the Veteran’s ability to hold or grasp objects is nil or almost none. Conversely, in records submitted by the physician in response to VA’s request, the examiner refers to the Veteran having had a procedure for left carpal tunnel syndrome in a November 2016 treatment record, and there is no mention of a diagnosis for right carpal tunnel. Similarly, in May 2016, prior to receiving his VA wrist examination, the Veteran also reported having carpal tunnel release on his left wrist last year. Given the above, the Board finds remand is warranted to clarify the nature and etiology of the Veteran’s bilateral wrists disabilities. Moreover, as the Veteran has been service-connected for right hand arthritis and a left thumb disability, an opinion is warranted to determine if his bilateral wrist disabilities are proximately caused by his service-connected right hand and left thumb disabilities. The matters are REMANDED for the following action: 1. Obtain the Veteran’s outstanding treatment records and associate them with the Veteran’s claims folder. 2. Schedule the Veteran for a VA examination with a qualified clinician to determine the nature and etiology of the Veteran’s vertigo. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. a) The examiner should provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the Veteran’s vertigo was manifested in service, or is otherwise related to service? b) Provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that vertigo was proximately caused by service-connected hearing loss and/or tinnitus? The examiner should comment on the relationship, if any, between the Veteran’s diagnosed Meniere’s disease, positional vertigo, hearing loss, and tinnitus. The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 3. Schedule the Veteran for a VA examination with a qualified clinician to determine the nature and etiology of the Veteran’s bilateral wrist disabilities. The examiner must review the claims folder, including a copy of this remand and all lay statements of record. a) Identify all currently diagnosed right and left wrist disabilities. b) For each identified disorder, provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the identified disorder manifested during service or is otherwise related to service, to include his reported in-service injury? c) For each identified disorder, provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that the identified disorder was proximately caused by his service-connected right-hand arthritis or left thumb disability? (Continued on the next page)   The examiner should provide a complete rationale for any opinions expressed. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. 4. Then, readjudicate the claims. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.