Citation Nr: 21030342 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-41 800 DATE: May 18, 2021 ORDER Entitlement to service connection for frostbite with residual pain and arthritis of the right upper extremity is granted. Entitlement to service connection for frostbite with residual pain and arthritis of the left upper extremity is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's right and left upper extremity frostbite with residual pain and arthritis are related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for right and left upper extremity frostbite with residual pain and arthritis have been 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 1986 to August 1989. These matters initially came the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for left upper extremity frostbite to include fingers. In November 2018, the Board recharacterized the issue as entitlement to service connection for left and right upper extremity residuals and remanded the claims to the RO for further evidentiary development. The Board has again recharacterized the disability in light of the diagnosis upon which service connection is being granted. 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). Service Connection Entitlement to service connection for right and left upper extremity frostbite with residual pain and arthritis The Veteran contends that he has right and left upper extremity frostbite residuals which warrant service connection. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. 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 discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The diagnosis on the October 2019 cold injury residuals VA Disability Benefits Questionnaire was "frostbite with residual pain and arthritis." The Veteran has thus met the current disability requirement. The Veteran reported that he was exposed to severe cold during active duty service during the winter of 1988, and his statements are competent, credible, and consistent with the circumstances of his service as shown by his DD Form 214 and personnel records. Therefore, the in-service injury element of the claim has been met. Turning to the third element, the "nexus" or causal relationship between the in-service exposure to cold and the current disabilities, there is conflicting medical evidence. There are two documents prepared on the same day in October 2019 by the same VA examiner, a physician. One is a cold injury residuals disability benefits questionnaire and the other is a medical opinion disability benefits questionnaire. The October 2019 medical opinion states that the Veteran's current bilateral hand condition is consistent with residuals of frostbite and his statements are consistent and credible, the absence of corroborating treatment records during service make it less likely than not that the current disability is related to service. However, the October 2019 Disability Benefits Questionnaire indicates that it is as likely as not that the bilateral osteoarthritis of the hands is related to in-service frostbite because no other causes are present and osteoarthritis of the joints of the hand is consistent with the long-term effects of frostbite. The latter opinion is probative because it explained the reasons for its conclusions based on an accurate characterization of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The former opinion is flawed because it relied on the absence of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Given that the two opinions by the same physician are somewhat inconsistent, with the favorable opinion being more probative, this creates a reasonable doubt as to whether the Veteran's diagnosed frostbite with residual pain and arthritis is related to service. As this reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for frostbite with residual pain and arthritis is granted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.