Citation Nr: 21040279 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-47 328 DATE: July 3, 2021 ORDER Entitlement service connection for frostbite right hand is denied. Entitlement to service connection for frostbite left hand is denied. Entitlement to service connection for frostbite right foot is denied. Entitlement to service connection for frostbite left foot is denied. FINDINGS OF FACT 1. The credible evidence of record does not show an injury or disease in service related to frostbite of the right hand. 2. The credible evidence of record does not show an injury or disease in service related to frostbite of the left hand. 3. The credible evidence of record does not show an injury or disease in service related to frostbite of the right foot. 4. The credible evidence of record does not show an injury or disease in service related to frostbite of the left foot. CONCLUSIONS OF LAW 1. The criteria for service connection for frostbite of the right hand are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for frostbite of the left hand are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for frostbite of the right foot are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303 4. The criteria for service connection for frostbite of the left foot are not 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 from December 1974 to August 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2013 decision by the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131, 38 C.F.R. § 3.303(a). "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case. When 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 claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement service connection for frostbite right hand 2. Entitlement to service connection for frostbite left hand 3. Entitlement to service connection frostbite right foot 4. Entitlement to service connection for frostbite left foot On his original August 2012 claim form, the Veteran reported that he was treated in Germany in 1975 for frostbite to his bilateral hands and feet. In an August 2014 notice of disagreement, he reported that while stationed in Jackson, South Carolina for eight weeks during the winter of 1974, they "occasionally slept overnight in the woods." He reported there was little protection from cold weather and training "consisted of walking through ice-water as well as low crawling through it. One evening I did report to the [A]rmy medic because my toes, hands, and feet turned blue in color. There was swelling and discomfort which limited my mobility. Due to these conditions the Army did prescribe bedrest." The Veteran contends that service treatment records (STRs) will support his account, but the STRs reveals no complaints, findings or diagnoses of frostbite or any cold injury. The STRs do show that the Veteran entered service with flat feet and had arch pain related to this condition. The appeal before the Board is not for entitlement to service connection for flat feet and cannot be construed as such, given the specificity of the Veteran's contentions. In September 1975 the Veteran was put on a profile for three weeks due to a sprained foot. They also show injury to the right great toe in June 1977 and a corresponding right foot profile for 7 days. This injury is already service-connected. They also show a in June 1977 for this toe injury. One month later, the veteran endorsed "foot trouble" on his separation report of medical history, presumably referring to this recent toe fracture. His separation examination showed clinically normal feet, upper extremities, and lower extremities. The STRs do not reflect the incident described the Veteran as occurring in either 1974 in South Carolina, or 1975 in Germany. Nor do they reflect any injuries or symptoms of the hands or feet that are related to frostbite. The Veteran was put on profile for his fractured toe and a sprained foot, but not for any cold-related injuries. The Veteran is competent to report symptoms of the hands and feet such as those described in his notice of disagreement. However, his report is internally inconsistent (changing the time and location of treatment), and inconsistent with the contemporaneous medical evidence in the STRs. The mere fact that his assertions are not supported by contemporaneous clinical evidence does not render them inherently incredible. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). In this case, however, the Veteran's relatively recent statements reporting injuries in service are contradicted by past records in which he appears to have reported all of his existing medical conditions without mentioning any problems related to his claimed frostbite. See AZ v. Shinseki, 731 F.3d 1303, (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (citing Fed. R. Evid. 803(7) for the proposition that "the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded"). In particular, the Veteran's STRs list numerous medical complaints, but nothing related to the currently claimed frostbite injuries to the hands and feet. Based upon the language and context of the STRs, the Board finds that the Veteran was reporting all the disabilities, medical conditions, and symptoms that he was experiencing at that time. Therefore, his failure to report any complaints of frostbite injuries at that time is persuasive evidence that he was not then experiencing any relevant problems and outweighs his present recollection to the contrary. The Board finds that the Veteran's lay evidence of injuries in service to his hands and feet is competent, but not credible due to the inconsistencies described above. In the absence of probative evidence of an in-service incurrence or aggravation of a disease or injury the claim must be denied. The Board finds the VA is not obliged to provide an examination or obtain an opinion for the Veteran's claimed conditions because there is no competent evidence indicating a link between the Veteran's claimed frostbite disabilities and service. The Veteran's "conclusory generalized statement that his service illness caused his present medical problems" is not enough to entitle him to an examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). The Board acknowledges that the appellant believes that he has residuals of frostbite to his bilateral feet and hands which are related to his military service. The appellant, however, as a lay person who is not trained in the field of medicine, is not competent to offer a diagnosis of frostbite in service, or current residuals of frostbite, or to provide an opinion addressing an etiological link between them. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (Continued on the next page) In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran's claims of entitlement to service connection for cold injuries to the bilateral hands and feet are denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony L. Hines 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.