Citation Nr: 21024679 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 20-24 153 DATE: April 23, 2021 ORDER Entitlement to service connection for a left foot condition is granted. Entitlement to service connection for a right foot condition is granted. FINDINGS OF FACT 1. The evidence is at least in relative equipoise on whether the Veteran’s current left foot disability is etiologically related to his active duty service. 2. The evidence is at least in relative equipoise on whether the Veteran’s current right foot disability is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left foot condition 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 a right foot condition 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 served on active duty in the U.S. Army from May 1954 to May 1956. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by a September 2020 Board decision. Specifically, the Board directed the RO to provide a VA examination and to obtain private treatment records. A VA examination was provided, and the RO issued a Supplemental Statement of the Case in January 2021 further denying the claims. There has been substantial compliance with the Board’s past remand directives, and neither the Veteran nor his attorney have alleged otherwise. See Stegall v. West, 11 Vet. App. 268 (1998). These matters now return to the Board for appellate consideration. Since the January 2021 Supplemental Statement of the Case, the Veteran’s attorney has submitted additional relevant evidence. She did not request initial RO consideration of this evidence, and thus, the Board may review the evidence in the first instance. 38 U.S.C. § 7105(e) (2018). Service Connection Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In determining whether service connection is warranted for a disability, 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; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a left foot condition is granted. 2. Entitlement to service connection for a right foot condition is granted. The Veteran contends that he has nerve damage in his feet as a result of being exposed to extreme cold weather when he was deployed to Canada. See October 2018 Statement in Support of Claim. The Veteran’s complete service treatment and personnel records were reported destroyed in a fire and irretrievable. See March 2014 Request for Information and April 2014 Correspondence. The only available service treatment record was the Veteran’s separation examination conducted in May 1956 and his feet were deemed normal. In situations where a veteran’s service treatment and service personnel records were affected by the 1973 fire at the National Personnel Records Center, the Board has a heightened obligation to explain its findings and conclusions and to carefully consider the benefit-of-the-doubt doctrine. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In a May 2020 affidavit, received in April 2021, the Veteran provided additional insight into his alleged service in Canada. He stated that he was part of a detachment that spent 10 days in the field and 10 days in the barracks. While in the field, he slept in a two-man tent with no heat, and his only heat source was the sun in the morning and the evening, and a Yukon heater. He alleged that temperatures reached as low as 60 degrees below zero. A thermocouple was attached to his boots to monitor the temperature of his feet, and was checked every 15 minutes. When the Veteran’s toes reached almost freezing, he would warm his feet near the Yukon heater. He claims he served in Canada from December 1954 to March 1955. The Veteran’s service personnel records are not available due to the 1973 fire at the records repository, and his service in Canada has not been confirmed. However, the Veteran’s DD Form 214 shows 3 months and 11 days of foreign service, which matches with the duration of time the Veteran has alleged that he served in Canada. Additionally, the Veteran’s attorney has submitted an internet article indicating that Fort Churchill, Canada—the location where the Veteran claims to have served—was a research center for cold weather testing of men and equipment for the United States military. In consideration of the above, and affording the Veteran the benefit of the doubt, the Board finds his reports of foreign service in Canada, as well as his reports of in-service cold exposure to be competent and credible in this determination. The Veteran was diagnosed with gout on his left foot in February 2018, plantar fascial fibromatosis in September 2018, and a cold injury to the feet in the January 2021 compensation and pension (C&P) examination. In February 2014, the Veteran reported decreased pulses in both feet. He also reported pain on his left second toe and pain in his right heel in January 2018. A private treatment record noted anesthesia and paresthesia on both feet in September 2018. The Veteran was afforded a C&P examination in January 2021, where his reported history of an in-service cold exposure injury to the feet was noted. The C&P examiner stated that the Veteran experienced nerve damage to the peripheral extremities, manifested by numbness to the toes, although she stated that this could not be objectively confirmed without electromyography testing. Following an in-person examination and review of the electronic claims file, the January 2021 C&P examiner opined that the claimed conditions were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that after reviewing the claims file, she was unable to find clinical documentation to support any injury to bilateral feet during service that caused the nerve damage. Based on the review of the Veteran’s records he does have a history of lumbar radiculopathy and peripheral artery disease (PAD). The Veteran is also on Gabapentin for the symptoms. Both of these disease processes can cause nerve damage to bilateral lower extremities. She stated: [I]n review of [the Veteran’s] records it appears he was given the lumbar radiculopathy diagnosis in 1999. There is no clinical documentation in his cfile to support nerve damage prior to 1999. The Veteran’s separation examination from May 1956 did not mention the numbness or any other paresthesia symptoms. In review of his records, there is not enough supporting evidence to establish a nexus. Also, in review of his records, the examiner was unable to find where the Veteran was stationed at Fort Churchill, Canada. If Veteran was stationed there and exposed to the extreme cold it is possible he could have a cold injury, but due to lack of evidence not able to form a nexus. (Emphasis added). In April 2021, the Veteran submitted a positive medical statement from a private physician, Dr. MBS. In this statement, Dr. MBS acknowledged the Veteran’s competent and credible reports that he served in Fort Churchill, Canada for three months from December 1954 to approximately March 1955, in subzero temperatures. He noted that known temperatures during that period of time were in excess of 50 degrees below zero, clearly establishing the potential for a cold weather injury. Dr. MBS stated that the Veteran’s symptoms of numbness, tingling, burning, throbbing, and shooting pain in the feet were consistent with peripheral neuropathy. Dr. MBS noted that hypothermia has significant effects on the neurological system, and while nonfreezing cold weather injuries tend to develop within 10 to 12 hours post exposure, freezing cold injuries tend to have delayed onset, up to and including years subsequent to the injury. Dr. MBS charted the Veteran’s history of chronic vascular compromise to the bilateral lower extremities, and stated these physical findings were consistent with the cold weather injuries the Veteran claims to have sustained during his active duty service, while stationed in Canada. The Board finds the private medical opinion received in April 2021 to be thorough and supported by a plausible medical rationale. Weighing the competing medical opinions, the Board finds the evidence is at least in relative equipoise on whether the Veteran’s neuropathy in the feet was caused by his alleged cold weather injury sustained on active duty while stationed in Canada. Given the absence of the Veteran’s service department records, aside from his separation examination, the Board has afforded the Veteran the benefit of the doubt regarding the circumstances, conditions, or hardships of his claimed foreign service in Canada. The private physician gave a reasoned explanation based on the Veteran’s credible lay reports as to why the Veteran’s current disability was etiologically related to a cold weather injury, and the C&P examiner did not rule out the potential that the Veteran’s symptoms were a delayed response to an in-service cold weather injury. Resolving all reasonable doubt in the Veteran’s favor, the medical nexus element of a direct service connection claim has been met. In light of the above analysis, the Board finds that the requisite elements for service connection have been satisfied, and the Veteran’s appeal seeking service connection for left and right foot disabilities, claimed as due to an in-service cold weather injury, is granted. M. GALANTE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeyemi, B. 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.