Citation Nr: 22018023 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 19-06 085A DATE: March 28, 2022 ORDER Entitlement to service connection for cold weather residuals of the feet is denied. FINDING OF FACT The Veteran does not have cold weather residuals of the feet which are attributable to service. CONCLUSION OF LAW The criteria for service connection for cold weather residuals of the feet have not been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1998 to June 2001 and from August 2002 to July 2003. He also had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In a September 2019 decision, the Board reopened and denied the Veteran's claim of entitlement to service connection for cold weather residuals of the feet. The Veteran appealed the denial of the claim for service connection for cold weather residuals of the feet to the Court of Appeals for Veterans Claims (Court). In August 2020, the parties filed a Joint Motion for Partial Remand (Joint Motion or JMPR) which requested that the Board's decision be vacated and remanded. An August 2020 Court Order granted the motion and remanded the claim for readjudication consistent with the terms of the Joint Motion. In December 2020 and October 2021, the Board remanded the Veteran's claim for service connection for cold weather residuals of the feet to the AOJ for additional development in compliance with the Joint Motion. A supplemental statement of the case was most recently issued in January 2022. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2021). 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 servicethe so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). At the outset, the Board notes that the Veteran does not claim, and the evidence does not show that the Veteran was exposed to combat during service. As such, the provisions of 38 U.S.C. § 1154 are not applicable in this case. Entitlement to service connection for cold weather residuals of the feet. As a threshold matter, the Board notes that the Veteran's initial claim for cold weather residuals of the feet is based on an incident that occurred during his initial period of active service, in November 2000. The Veteran submitted a statement in June 2018, wherein he reported that he was outdoors for two weeks in early November 2000 on a field exercise, that he slept outdoors in a tent, and that his feet became very wet and cold during nighttime road marches. The Veteran noted that, upon termination of the field exercise, he sought medical care at service medical facilities and reported that his feet hurt and were both painful and numb in areas. The Veteran's service treatment records confirm treatment related to his feet. The initial treating medical professional noted a diagnosis of chilblains involving the toes and feet in a report dated November 11, 2000. (The Board notes that chilblain is a recurrent localized erythema and doughy subcutaneous swelling caused by exposure to cold associated with dampness and accompanied by pruritus and a burning sensation. See Dorland's Illustrated Medical Dictionary 343 (32nd ed. 2012)). The treating provider noted the Veteran's claimed injuries occurred during weather conditions ranging from approximately 32 degrees to 50 degrees fahrenheit. The treating provider did not find redness, swelling, or breaks in the skin, and noted the Veteran's feet pain was consistent with weight-bearing. The Veteran was prescribed prescription-strength analgesics and sent home. Two days later, the Veteran returned, complaining of bilateral foot pain. The same treating provider indicated there was no swelling or erythema, and wrote "foot pain secondary to flat feet" in the treatment report. The Veteran received a VA general medical examination in May 2001. At that time, he reported he had chilblains injuries to both his feet the previous year, but that "he [had] no problem with this now." The VA examiner noted that observation reflected normal skin of the feet, without evidence of ulceration or tissue loss; the VA examiner stated that there was less than one second capillary refill time of all foot digits. The VA examiner concluded that he "cannot ascribe any physical diagnosis nor attribute any physical impairment to this." The Veteran received two subsequent service physical examinations. In May 2002, the Veteran's history noted "chill to the foot" along with "hurt knee on road march" and flat feet without sequelae. No further residuals of the Veteran's November 2000 were noted by this service provider, and the Veteran made no complaint of any current foot symptoms of any kind during that examination. The Veteran received another service examination in April 2003; no mention of any foot problems was noted in the history or in the contemporaneous physical examination report by the Veteran or the service examiner. The Veteran was provided a VA new patient general examination in August 2011. In this comprehensive physical examination, the Veteran reported appendicitis and kidney stones as his medical history; there was no mention of his cold weather injuries during active service from November 2000. The VA provider found the Veteran's skin to be soft and warm, no edema or lesions, and noted the Veteran had plantar fasciitis that was treated by a private podiatrist; no neurological abnormalities were noted. The Veteran received a VA general examination in October 2012, wherein he complained of hearing loss and possible temporomandibular joint syndrome. The Veteran also noted he had another kidney stone in the past year but made no statement regarding any cold weather residuals of his feet. The VA examiner again noted plantar fasciitis but noted normal skin without breaks or lesions and no neurological abnormalities. A private March 2017 record indicates history and examination that "may" suggest mild degree of sensory peripheral neuropathy that "could" be related to frostbite years ago. In October 2017, the Veteran received a VA examination for his feet based on a claim for service connection for plantar fasciitis. This examiner diagnosed bilateral pes planus and noted its original diagnosis in service in 1998. Hallux valgus on the right foot was also diagnosed, as well as bilateral plantar fasciitis, again with an original diagnosis in 1998. During this examination of the Veteran's feet, the Veteran made no mention of cold weather injury residuals to his feet from active service, but said his bilateral foot pain was due to "ruck marches" in service. This examiner found no signs of any cold weather injury or residuals of injury, and the Veteran said that his pain in his feet increased with weight bearing. Based on this examination, the Veteran was granted entitlement to service connection for plantar fasciitis in a November 2017 rating decision. The Veteran received a private physical examination in November 2018, as part of seeking treatment for bilateral hearing loss, sleep apnea, and a temporomandibular joint disorder. Here, the Veteran made no mention of any history of cold weather injury residuals of his feet, and the private physician did not find any neurologic problems, musculoskeletal problems, or arthralgia in any part of the Veteran's body. In January 2019, the Veteran received a VA examination for his feet with a focus on the claim regarding cold weather injury during active service. The examiner found that for each foot there were no fractures or soft tissue abnormalities. X-rays taken of each foot that day showed normal bone structure and no other problems beyond plantar fasciitis. The examiner noted the Veteran's complaints of November 2000 cold weather injuries to his feet, and diagnosed arthralgia by history, numbness, cold sensitivity, and hyperhidrosis from the service records. The examiner observed the Veteran walked normally and required no assistive devices. The examiner specifically noted that there was no functional impairment of an extremity due to cold injury such that effective function was reduced. The examiner performed a sensation exam with a paper clip and monofilament, which showed normal sensation intact. The VA examiner concluded that it was less likely than not (i.e., less than 50 percent probability), that the claimed condition of cold injury residuals of the feet were incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that, although the Veteran was diagnosed with a cold weather injury of the bilateral feet in November 2000, that the treating provider at the time did not find a permanent injury; the cold and wet exposure was temporary. The VA examiner also noted that the November 2000 treating provider attributed the Veteran's foot pain to his flat feet. The VA examiner noted that there is no evidence of chronic injury or condition and that the Veteran's final service examination in May 2003 did not mention, either by the Veteran or the examining provider at that time, any cold weather residual injury to the feet. The VA examiner noted that the medical literature indicates that chilblains is very unlikely to cause any permanent damage. The VA examiner further noted that the Veteran's sensation test in each foot was normal, indicating no permanent neurological damage, and objective physical examination revealed no defect or chronic condition of the feet beyond the Veteran's service-connected plantar fasciitis. The Veteran was afforded another VA feet examination in January 2021, in connection with his service-connected plantar fasciitis; he was also diagnosed with bilateral pes planus (flat feet) at that time. The examination report indicates that the Veteran did not report a history of any other foot injuries and that no symptoms other than those associated with his plantar fasciitis and pes planus were found. In April 2021, the Veteran was afforded VA feet, peripheral nerves, and cold injury examinations. At the feet examination, the VA examiner indicated that the Veteran did not have any foot disabilities, and indicated that physical examination of the feet was normal. The examiner concluded that for the Veteran's claimed condition of cold weather residuals of the feet, there is no diagnosis because there are no findings, signs and or symptoms to support a diagnosis. At the peripheral nerves examination, a diagnosis of peripheral neuropathy of the right and left lower extremities in January 2000 was noted. The VA examiner described the Veteran's history as beginning after an injury, which caused pain and radiating numbness, and trouble in the extremities; the symptoms were described as throbbing pain, numbness, tingling, and pinching needles, treated with physical therapy and "artic relief gel." Physical examination showed normal sensory examination, full muscle strength, and normal reflexes of the lower extremities, without evidence of trophic changes, atrophy, or abnormal gait. Nevertheless, the VA examiner stated that the Veteran had moderately severe incomplete paralysis of the sciatic nerve; all other lower extremity nerves were normal. At the VA cold injury residuals examination, the VA examiner noted that the Veteran has not been and had not ever been diagnosed with any cold injuries. The VA examiner noted that the Veteran reported that his claimed foot disorder began in 2000, as the result of physical training, rucking for miles in boots, and prolonged standing and walking; the Veteran described symptoms at the time of onset as stabbing foot pain and tenderness, treated with physical profiles, shoe inserts, and limited activity. The Veteran reported that he currently experiences daily tenderness and burning dull pain. The VA examiner noted that physical examination did not demonstrate any signs or symptoms of a cold injury in the right and left feet. The VA examiner concluded that there are no findings, signs, and/or symptoms to support a diagnosis of cold weather residuals of either foot. In August 2021, a VA medical opinion was provided by the April 2021 VA examiner. The VA examiner indicated that, based on a review of the record and the findings of the April 2021 VA examination reports, the claimed condition of cold weather residuals of the feet was not likely incurred in or caused by an in-service injury, event, or illness. The VA examiner explained that, after reviewing the Veteran's medical records and physical examinations, there is no pathology or diagnosis to render an opinion. An additional VA medical opinion was obtained in December 2021, in response to the October 2021 Board remand, which requested additional clarification as to whether the Veteran has or had at any time during the pendency of this appeal a diagnosis related to cold injury of the feet, to include the diagnosis of peripheral neuropathy noted in the record, and if so, whether it is at least as likely as not that any such diagnosis had onset in service or is otherwise related to service. Following a thorough review of the claims file and relevant medical literature from the Mayo Clinic, the VA examiner concluded that the claimed cold weather residuals of the feet were not likely (i.e., less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that the diagnosis of chilblains was one of many provisional, unconfirmed, diagnoses, and continued historical reference to that diagnosis is based on treatment notes related to the provisional diagnosis of chilblains on one occasion. The VA examiner conceded that it was likely the Veteran did have foot symptoms related to exposure, including wet and cold conditions, but noted that some of the Veteran's symptoms of pain were attributed to the Veteran's flat feet (pes planus). However, the VA examiner noted that there were no further notations of a foot condition between November 2000 and the Veteran's May 2001 separation examination, which was negative for foot and/or skin conditions; the VA examiner noted that the Veteran made no report of foot and/or skin conditions or neuritis during his Report of Medical History. The VA examiner stated that it was "highly unlikely" for a skin condition or neuritis of the feet to go unnoted or unreported in the remaining 6 months of the Veteran's service, and pointed out that the Veteran re-entered active duty from 2002 to 2003, and there is no evidence that he had any complaints or treatment for symptoms of a foot disorder, skin condition, and/or neuritis. The VA examiner noted that there is no evidence of a complaints or symptoms of a foot disorder for over 10 years after his second period of active duty, and pointed out that any foot condition, including chilblains and/or peripheral neuropathy, likely would have been evident proximate to the claimed cold injury; peripheral neuropathy was not shown until approximately 2017. The VA examiner further noted that x-rays in 2019 and 2020 are negative for signs typical of bony injury due to cold/caused by, known as tufting. The VA examiner further indicated that the Veteran's diagnosis of peripheral neuropathy appears to have been based on the Veteran's subjective complaints and not objective, diagnostic testing, and that cold injuries rarely result in a remote secondary condition such as peripheral neuropathy; cold injury symptomatology occurs at the time of or proximate to such an injury. The VA examiner pointed out that the medical evidence did not demonstrate continuity of cold injury symptomatology. The VA examiner acknowledged that the Veteran had degenerative changes on x-rays, but pointed out that the degenerative changes are not in areas where residuals of a cold injury are found, such as the distal portions of distal phalanxes. The VA examiner concluded that it is less likely than not that the Veteran's claimed foot conditions and symptoms are due to or incurred in events in service. The Board acknowledges that the Veteran claims that he has residuals of a cold weather injury of the feet related to his first period of active duty. The Board notes that whether service connection is claimed on direct or secondary basis, a necessary element for establishing such a claim is the existence of current disability. In this case, the Veteran must show that he currently has residuals of a cold weather injury of the feet due to an event, disease, or injury in service. The Board finds that the most persuasive evidence is against the existence of current residuals of a cold weather injury of the feet. There is no evidence reflecting that he has been treated for or diagnosed with residuals of a cold weather injury of the feet. The Board does not dispute that the Veteran was treated for complaints of a cold injury to his feet in November 2000. However, there is no evidence of any related disability in the years since the Veteran's service. The Board reiterates that the Veteran is currently service connection for bilateral plantar fasciitis, but points out that there is no evidence of any other right and/or left foot disorders during service, or for many years thereafter. To this point, the Board observes that, contemporaneous to his initial claim for service connection in 2001, the Veteran denied having any residuals of a cold weather injury of the feet; the Veteran has not asserted that he has residuals of a cold weather injury of the feet related to his active duty except as it relates to his claim for service connection. See Pond v. West, 12 Vet. App. 341 (1999) Additionally, the Board observes that the Veteran's post-service treatment records do not reflect any complaints or treatment related to residuals of a cold weather injury of the feet. To the contrary, VA examination reports and post-service treatment records reflect that physical examination and x-rays of the Veteran's feet did not reveal any cold weather injury residuals, and do not show any evidence of any right and/or left foot disorders (other than plantar fasciitis); x-rays and physical examination were repeatedly negative for evidence of residuals of a cold weather injury of the feet. In this regard, the Veteran has not provided any medical evidence of treatment, complaints, or diagnoses related to residuals of a cold weather injury of the feet in the years since his active duty. Further, the evidence has not demonstrated that the Veteran has any current cold weather injury residuals of the feet; his bilateral foot pain has been attributed to his service-connected plantar fasciitis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board acknowledges that the Veteran's private treating provider, in March 2017, opined that the Veteran's history and examination that "may" suggest a mild degree of sensory peripheral neuropathy that "could" be related to frostbite years ago. However, the Board finds that this opinion is speculative and, and as such, carries little probative weight. The Board notes that the private medical opinion uses "may" and "could", which are speculative in nature. To the extent that the Veteran's private treating provider couched the opinion in speculative language, and did not provide a rationale or medical literature supporting the opinion, the Board finds this opinion is inadequate. Speculation does not provide the required degree of medical certainty. See Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board also notes that the private treating provider's opinion is also insufficient as it is based solely on the Veteran's report of history; as previously discussed, multiple VA examination reports reflect that the Veteran's diagnosis of peripheral neuropathy of the lower extremities is based solely on the Veteran's report of symptoms and not objective diagnostic testing. The Board may not accept the medical diagnoses to the extent that they are not supported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has noted that in order for a veteran to qualify for entitlement to compensation under those statutes, he or she must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). Here, there is no competent evidence of any post-service pathology (diagnosis). The Board finds that the evidence does not support a finding of entitlement to service connection for cold weather injury residuals of the feet, and the claim is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.