Citation Nr: 21027409 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-21 513 DATE: May 5, 2021 ORDER Entitlement to service connection for gout is denied. Entitlement to service connection for an eye disability, to include cataracts, is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for an anxiety disorder is denied. Entitlement to service connection for residuals of cold weather injury, to include the bilateral legs and bilateral feet, is denied. FINDINGS OF FACT 1. The Veteran's current gout disability first developed many years after discharge from service and is unrelated to service. 2. The Veteran's current eye disability, to include cataracts, first developed many years after discharge from service and is unrelated to service. 3. The Veteran's diabetes mellitus disability first developed many years after discharge from service and is unrelated to service. 4. The Veteran has not been shown to have an anxiety disorder, or any other acquired psychiatric disorder at any time during the appeal period. 5. The Veteran has not been shown to have cold weather injuries of the legs or feet at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for gout are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for an eye disability, to include cataracts, are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. The criteria for service connection for diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 4. The criteria for service connection for an anxiety disorder are not met. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 5. The criteria for service connection for cold weather injuries of the legs and feet are not met. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1945 to February 1947. This matter comes before the Board of Veterans' Appeals (Board) from August 2014 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These claims were remanded by the Board in July 2016, August 2017 and August 2020. The Board notes that the Veteran did not respond when the RO requested that he provide information so that his medical records could be obtained from private providers. The development requested by the Board has been accomplished to the extent possible and the Veteran's claims are now ready for Board review. In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is associated with the Veteran's electronic claims file. The Board notes that the Veteran's service treatment records are not available. The National Personnel Records Center (NPRC) has indicated that they were destroyed in the fire at that records storage facility in 1973. The Board is satisfied that the RO has taken all necessary steps to secure service treatment records and, given the responses from the NPRC, that additional efforts would be futile. 38 U.S.C. § 5103A(b). In a case such as this, where service treatment records are unavailable, the Board is mindful of the heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection for gout. 2. Entitlement to service connection for an eye disability. 3. Entitlement to service connection for diabetes mellitus. The Veteran submitted his claims for service connection for gout, for an eye disability, and for diabetes in May 2014. The Veteran noted on his August 2014 notice of disagreement (NOD) that his service treatment records (STR) were destroyed in the fire at the records center. He stated that he felt that his disability conditions were directly caused by, or related to, his military service. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of diabetes mellitus may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of a veteran's discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, there is no presumed service connection because diabetes mellitus was not medically diagnosed within one year of discharge. Although the Veteran's STR could not be obtained, his file does contain his January 1947 discharge examination report. The report does not show any abnormalities indicating that the Veteran had gout, eye problems or diabetes during service. To the contrary the examination report specifically noted that the Veteran had no eye abnormalities, that his endocrine system was normal, that his urine was negative for sugar, that his skin was normal and that his feet were normal. VA treatment records from May 2001 onward show treatment for gout. These records show that the Veteran first received a diagnosis of diabetes mellitus in February 2004. When provided a diabetic eye examination in October 2004, the Veteran reported that he had not had any eye injuries, any serious eye infection or any eye surgeries. He was noted to have glaucoma and cataracts. In April 2007 the Veteran was noted to have macular degeneration and glaucoma. He had a cataract removed from his left eye in May 2017. The Veteran has not provided any specific contentions as to why he thinks his current gout, his current eye disabilities, or his current diabetes mellitus are related to service. He did not provide any testimony regarding these disabilities at his hearing. The record does not show that the Veteran developed gout, eye or diabetes disabilities until more than 50 years after discharge from service and none of the medical records provide any indication that the Veteran's gout, eye or diabetes disabilities are related to his service. The Board finds that the weight of the evidence is against the conclusion that the Veteran has a current gout, eye or diabetes disability due to service. To the extent that the Veteran asserts that he has current gout, eye or diabetes disabilities that are related to service, he is not competent to offer an opinion on a matter requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). Here the preponderance of the evidence indicates that the Veteran's current gout, eye or diabetes disabilities are not related to military service. Accordingly, the Veteran's claims for service connection for gout, eye and diabetes disabilities are denied. 4. Entitlement to service connection for an anxiety disorder. The Veteran submitted his claim for service connection for anxiety in May 2014. On his February 2015 NOD the Veteran reported that while he was in Korea a friend died of cold exposure. The Veteran said that he had had problems with nerves ever since that happened. He did not provide any testimony regarding anxiety at his hearing. The Veteran's January 1947 discharge examination report notes that the Veteran was psychiatrically normal. The Veteran's VA treatment records show no complaints or findings of anxiety, or any other mental disorder. A May 2001 VA treatment record specifically notes that the Veteran did not have depression and that he did not have anxiety. On VA examination in February 2018 the examiner noted that the Veteran had not ever been diagnosed with a mental disorder. When queried by the examiner, the Veteran denied having any anxiety or problems with his nerves. The VA examiner stated that the Veteran did not have any mental disorder. In April 2020 the VA examiner again reviewed the Veteran's file, including his prior examination report of the Veteran, and again found that the Veteran did not have any mental disorder. The most probative evidence of record indicates that the Veteran has not had an anxiety disorder or any other mental disorder. In the absence of evidence of a disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for an anxiety disorder is not warranted. 5. Entitlement to service connection for residuals of cold weather injuries. The Veteran submitted his claim for service connection for cold injuries of the feet and lower legs in February 2015. He reported that his boots froze to his feet one time while he was in Korea. He said that it took several people to get his boots off and that when they finally got his socks off there were patches of skin attached to his socks. The Veteran asserts that ever since Korea he gets cold even in above freezing temperatures. The Veteran reported that his feet are ashy and that they crack and peel. He maintains that he has bad neuropathy and that he has had it since his early 20s. He pointed out that the was not diagnosed with diabetes until he was over 70 years old. At his hearing the Veteran reported that his feet froze while he was serving in Korea. He testified that his feet turned black. The Veteran asserted that the VA physician who examined his feet did not know what he was doing. He stated that ever since Korea he has had zero tolerance for the cold. The Veteran reported that he was currently receiving treatment from a podiatrist. Although the Veteran stated at the hearing that he would submit private medical records to VA, he did not submit any such records. In May 2017 the Veteran submitted medical treatise information about cold weather injuries. The Veteran's January 1947 discharge examination report notes that the Veteran was had no skin abnormalities, no neurological abnormalities and no feet abnormalities. The Veteran's VA treatment records show that on examination in September 2004 the Veteran's feet had normal sensation and that they were visually normal. In May 2011, and again in May 2013, the Veteran complained of intermittent swelling in his feet and ankles. In August 2017 the Veteran reported that his feet hurt all the time and that he had his feet frozen in Korea. The VA podiatrist noted that the Veteran had been diabetic for six years and that the Veteran had retired from the postal service after 30 years. The Veteran's feet were warm to touch and there was no edema. Epicritic sensations were diminished bilaterally. The assessment was diabetes, neuropathy. On VA examination in February 2018 a VA physician noted that the Veteran did not have any cold injuries and that the Veteran had not ever been diagnosed with cold injuries. The physician opined that the Veteran did not have any cold injuries of the feet and legs due to service. He noted that the Veteran was found to have normal feet on discharge in 1947 and that the Veteran worked for 30 years for the Post Office and had no difficulty with prolonged standing. He pointed out that the Veteran had been diagnosed with diabetes six years earlier and that he began experiencing tingling in both feet about three years later. He noted that his examination of the Veteran revealed no evidence of cold related injury and that the Veteran's sensory deficits in both feet were typical of diabetic peripheral neuropathy. He further noted that x-rays in 2017 showed mild degenerative joint disease of the feet, which was typical for a 91-year-old. With regard to the medical treatise evidence, although the articles discuss frostbite injuries they do not contain any information pertinent as to whether the Veteran ever experienced a cold injury or pertinent to whether he currently has any cold weather residuals of the feet or legs. Consequently, this evidence is of little probative value. To the extent that the Veteran asserts that he has current cold injuries of the legs and feet, he is not competent to offer an opinion on a matter requiring medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). The most probative evidence of record, the discharge examination report, the VA treatment records, and the VA medical opinions, all indicate that the Veteran does not have any cold injuries of the legs or feet. In the absence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for residuals of cold weather injury, to include the bilateral legs and bilateral feet, is not warranted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Jones, 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.