Citation Nr: 21042284 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-57 337 DATE: July 12, 2021 ORDER Entitlement to service connection for cold injury residuals of the left foot is granted. Entitlement to service connection for cold injury residuals of the right foot is granted. Entitlement to service connection for right ankle injury is granted. REMANDED Entitlement to service connection for right shoulder condition is remanded. FINDINGS OF FACT 1. The cold injury residuals of the left foot are etiologically related to military service. 2. The cold injury residuals of the right foot are etiologically related to military service. 3. The Veteran's current right ankle disability was first manifested during a period of inactive duty training, due to an injury that was determined to have occurred in the line of duty. CONCLUSIONS OF LAW 1. The criteria for service connection for cold injury residuals of the left foot have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for cold injury residuals of the right foot have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a right ankle disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1996 to April 1999. He was then a member of the United States Army National Guard, with a period of active duty service from February 2009 to March 2010; he additionally had periods of active and inactive duty training (ACDUTRA and INACDUTRA, respectively) as a National Guardsman. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). A virtual Board hearing was held in June 2021. This decision is being rendered prior to the production of a transcript of that hearing. Given the favorable outcome for the claims of service connection for cold injury residuals of the left and right foot and right ankle injury, and that no final or adverse decision is being taken in regard to the service connection claim for a right shoulder disability, the Veteran is not prejudiced, and a transcript will be associated with the claims file at a later time. Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the context of Reserve or National Guard service, active military service is defined to include any period of ACDUTRA in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of INACDUTRA during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24). ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of Title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of Title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Cold Injury Residuals Left and Right Foot The Veteran alleges that he is entitled to service connection for residuals of cold injury to both feet, following an in-service incident of cold weather exposure. The Veteran's service treatment records document "trench foot" in service, as well as cold injury to both feet. Records from January 1997 document cold weather exposure, noting that it caused symptoms including pain, swelling, and tenderness to the touch in the Veteran's feet. As a result, he was placed on a profile for seven days. The exposure was identified as possible frost bite of the bilateral feet and ultimately assessed as immersion/trench foot. This condition was noted on the report of medical history associated with the Veteran's separation examination for this period of active duty, completed in January 1999. Specifically, it was found that the Veteran still had problems with his feet in cold weather and that they get very painful and stay that way for weeks. The Veteran's post-service VA treatment records show consistent reports that he has continued to complain of a shocking sensation in his feet when they get cold. He further reported this in a December 2016 lay statement, stating that he suffers with pain of a shocking sensation in both feet, as well as pain if he is standing for more than 5 minutes. Most recently, in the June 2021 Board hearing, the Veteran reiterated that he experiences a shocking sensation, cold sensitivity and discoloration. In March 2016, the Veteran was afforded several different VA examinations considering disabilities related to his feet, including a cold injury residuals examination, a skin condition examination, and a peripheral neuropathy examination. The cold injury residuals examination identified symptoms including arthralgia or other pain, cold sensitivity, nail abnormalities, local impaired sensation, numbness, and hyperhidrosis in both feet, as well as color changes in the left foot. In the skin condition examination, the Veteran was also diagnosed with onychomycosis and tinea pedis. The peripheral neuropathies examination noted a diagnosis of cold injury bilateral feet with associated foot numbness. This examination included the Veteran's report that he experiences "a shock in his feet" when it gets cold, and that his "feet get cold and pained easily." He mentioned that he wears socks all the time, and further reported numbness in both feet. When asked about functional impact, he said that "my feet ache and hurt which is worse with long standing. More easily irritable," and that "my feet are always cold." Peripheral neuropathy symptoms of mild pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness were identified. In June 2016, a VA medical opinion was obtained. However, this only addressed whether the Veteran's onychomycosis and tinea pedis were at least as likely as not a continuation of the symptoms/complaints/treatment shown in the service treatment records. The examiner ultimately concluded that medical literature indicates that onychomycosis and tinea pedis are the result of common fungal infections and not uniquely associated with history of cold injury, nor is onset of onychomycosis and tinea pedis suggestive of association with a 1997 cold injury. This opinion does not properly consider the Veteran's consistent reports of increased pain and the shocking sensation that he feels when his feet are cold, and focuses on symptomatology even the Veteran has stated are not related to his claim. Accordingly, it is inadequate for the purposes of determining the etiology of cold injury residuals. Rather, the Board finds that the evidence of record supports a finding that the Veteran has consistently experienced cold injury residuals since the January 1997 exposure. Not only did his separation documents from 1999 report this, but the Veteran has continued to report that he experiences a shocking sensation and bilateral foot pain during cold weather in his both his medical records and lay statements. Additionally, current symptoms of arthralgia or other pain, cold sensitivity, nail abnormalities, local impaired sensation, numbness, and hyperhidrosis in both feet, as well as color changes in the left foot, were identified in the cold injury residuals examination. Furthermore, although the examiner who completed the peripheral neuropathies examination did not offer an opinion as to the etiology of the bilateral lower extremity neuropathies, she did identify the Veteran's diagnosis as "cold injury bilateral feet with associated foot numbness." Accordingly, it is reasonable to conclude that the symptoms identified on this examination related to the cold injury. Therefore, the Board finds that service connection for cold injury residuals of the left and right feet is warranted. 38 U.S.C. § 5107. Right Ankle Injury The Veteran alleges that he is entitled to service connection for a right ankle disability as result of an in-service right ankle injury. The Veteran's service treatment records show that he sprained his right ankle while completing a navigation course during a period of INACDUTRA in August 2011. A determination was made that this was incurred in the line of duty. In a February 2013 memorandum, the report was reviewed and officially approved. Service treatment records from August 2011 reflect that two weeks following the incident, he continued to have ongoing pain and swelling. By October 2011, private treatment records showed that his right ankle continued to be painful, with swelling and aggravation of pain on weight bearing; his symptoms were found to be suggestive of a tendon tear. In VA treatment records from September 2012, complaints of right ankle pain were again noted, with chronic edema lasting for more than 3 months. VA treatment records from February 2013 note recurrent ankle sprains, with recurrent pain and instability and frequent inversion sprains since the injury. Here, it was noted that a previous MRI had shown tendon pathology, bone chipping, and cartilage damage. Additionally, the Veteran appears to have been given several additional profiles for his right ankle for subsequent training periods during his National Guard service. In September 2012, he was given a three-month profile due to right ankle pain. He was given another two-month profile in August 2014 due to right ankle instability and pain. Service treatment records from August 2014 refer to the prior training injury, noting that the Veteran had reported that his ankle has felt unstable ever since then, especially when walking on uneven ground. It was noted that he has intermittently used a brace, and that by that time, he sprained his ankle almost weekly. The Veteran's VA treatment records have continued to reflect complaints of right ankle sprains and pain. For example, December 2015 records show that his right ankle had continued to have pain with rolling and gives way. Right chronic ankle instability was noted in October 2020 records, at which time the Veteran reported that he has sprains roughly once a week. It was noted that he had experienced these intermittent sprains since 2010. In a lay statement from December 2016, the Veteran reported that because of the weakness in his ankle following the injury, he continually rolls his ankle and falls due to lack of strength. The Veteran was afforded a VA ankle conditions examination in October 2017, at which time he was diagnosed with an acute ankle sprain. The examiner opined that although a right ankle injury occurred while in military training, there was no objective medical evidence to support that the current right ankle condition noted at the current examination was related to the same ankle sprain noted in 2011. She concluded that there was a significant gap in time without evidence of continued care for the original injury, and as such, a nexus was not established. However, this opinion does not account for the consistent reports of right ankle instability and recurrent, intermittent sprains recorded in the Veteran's treatment records, which specifically note that these have been occurring since the identified in-service injury. Therefore, despite the findings from the VA examiner, the Board finds that the Veteran has a right ankle disability that first manifested during service and has continued to the present. Continuous symptomatology is supported by the Veteran's lay statements, his post-injury service treatment records, and his VA treatment records. No intervening causes that would otherwise explain the disability have been identified. As such, the Board finds that the Veteran's current right ankle disability first manifested during a period of INACDUTRA due to an injury that occurred in the line of duty. As such, the Board concludes that entitlement to service connection for a right ankle disability is warranted. 38 U.S.C. § 5107. REASONS FOR REMAND Right Shoulder Condition The Veteran alleges that he is entitled to service connection for a right shoulder condition following an injury that he received during his deployment. The Veteran's service treatment records specifically note that this injury involved the left shoulder. However, during the June 2021 Board hearing, the Veteran reported that his right shoulder was also injured at this time. He explained that since his left shoulder was worse, it received the focus of treatment. He reported current symptoms related to pain and functional impairment in his right shoulder during the hearing. Alternatively, in a December 2016 lay statement, the Veteran reported that he was required to lift large, odd shaped and heavy mechanical pieces while in the confined space of a tank. He explained that because of this, he was only able to use his upper body to lift these objects. Although he did not specifically state that this caused a right shoulder injury, he indicated that it was related. The Veteran was afforded a VA Shoulder and Arm examination in August 2016, at which time he was diagnosed with a left shoulder strain. No diagnoses were made regarding the right shoulder; however, it is unclear whether the examiner was asked to consider the right shoulder. The examination report notes that it was ordered to address the left shoulder condition, not both the left and the right shoulders. The examiner provided a positive nexus opinion for the left shoulder but did not discuss the right. Accordingly, the Veteran should be afforded another VA shoulder and arm examination to specifically address the Veteran's right shoulder and consider whether there is a nexus to service, considering the Veteran's statements regarding his deployment injury as well as his statements regarding heavy lifting in-service. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA shoulder and arm examination; the claims folder must be reviewed in conjunction with such. The examiner must identify all current diagnoses related to the right shoulder, and for each, must opine as to whether it is at least as likely as not related to service. The Veteran's statements regarding right shoulder injury during deployment, as well as his statements concerning heavy lifting in-service, must be addressed. A full and complete rationale should be provided for all opinions expressed. 3. Then, readjudicate the issue on appeal. If the determinations remain unfavorable to the Veteran, a supplemental statement of the case should be furnished. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.P. Faris 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.