Citation Nr: 0713084 Decision Date: 05/02/07 Archive Date: 05/15/07 DOCKET NO. 98-02 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for residuals of cold injury, bilateral feet (claimed as frostbite). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from June 1955 to March 1957. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The veteran has been diagnosed with cold injury of the right foot with peripheral vascular disease of the dorsalis pedis and peripheral neuropathy, with cold injury of the left foot with peripheral neuropathy, and with fungus infection of the toenails of some (but not all) toenails of both feet. 2. Except for his time of military service, the veteran has lived in North Carolina and has not been exposed to extreme cold there. 3. The veteran incurred frostbite during active service in Korea. 4. The evidence in the record provides a nexus between the veteran's active military service and his current residuals of cold injury, bilateral feet. CONCLUSION OF LAW The criteria for service connection for residuals of cold injury, bilateral feet (claimed as frostbite), have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, three requirements must be met: (1) the existence of a current disability; (2) an injury or disease was incurred during active military service; and (3) a relationship exists between the current disability and the inservice injury or disease. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (a determination of service connection requires a finding of the existence of a current disability and a determination of the relationship between that disability and an injury or disease incurred in service). There is no doubt that the veteran has a current disability, bilaterally, of his feet. The veteran submitted much evidence of medical treatment of both feet. At the August 2004 compensation and pension (C&P) examination, the examiner diagnosed him with cold injury of the right foot with peripheral vascular disease of the dorsalis pedis and peripheral neuropathy, with cold injury of the left foot with peripheral neuropathy, and with fungus infection of the toenails of some (but not all) toenails of both feet. Although the examiner also diagnosed him with triple arthodesis of the left ankle and pes planus (not obvious), he determined that those conditions were not related to a cold injury. Thus, with respect to the three conditions described above, the record clearly establishes the first requirement for service connection. The evidence is less clear with respect to the other two requirements. There are no service medical records for the veteran (which were presumably destroyed in a fire at the National Personnel Records Center in Saint Louis, Missouri) to establish that he incurred a cold injury to the feet during service. The RO asked the United States Armed Services Center for Unit Records Research (USASCURR), which has changed its name to the United States Army and Joint Services Records Research Center (JSRRC), to obtain the morning reports for the veteran's unit (to verify that the veteran went on sick call during the winter of 1956-1957) and to obtain abstracts from the Surgeon General's Office (to verify medical treatment) for that time period. The JSRRC replied that it searched morning reports for the 31st Inf. Regt, Co. D, from November 1, 1955 to March 15, 1956, as well as other times before and after that period, and found no remarks pertaining to injury of illness of the veteran. In addition, no SGO abstracts were available. Thus, there are no inservice records to establish that the veteran incurred a cold injury of his feet during service. And the lack of remarks in the relevant morning reports constitutes negative evidence that the veteran did not incur any cold injury during service. But a veteran is not limited to contemporaneous evidence to establish that a disease or injury was incurred during service. A service connection claim is considered on the basis of the places, types and circumstances of a veteran's service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). In particular, when a disease is diagnosed after service, inservice incurrence can be established when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). And due consideration must be given to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). Here, the C&P examiner's diagnosis is medical evidence that the veteran incurred a cold injury to both feet at some time during his lifetime. The record shows that the veteran served overseas during active duty. The envelopes from the letters written to his then-girlfriend show he was in Korea during the winter of 1956-1957. He submitted evidence from the National Oceanic and Atmospheric Administration that during the period from December 1995 through February 1996, the area in which the veteran served experienced extreme cold temperatures. He testified at the October 1997 RO hearing and at the March 2007 Board hearing that except for his military service, he has lived in North Carolina all his life and was exposed to extreme cold only during his time of military service in Korea. He also testified about a particular incident in which he was wearing leather boots rather than the better-insulated "Mickey Mouse" boots and when he debarked after several hours in an open truck, he (along with others in his company) was unable to stand. When he removed his boots, his feet were discolored and he sought medical treatment from the company medic. He testified that he was told he had mild frostbite. It is well established that a lay person cannot provide competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a lay person is not competent to give evidence of matters that require medical knowledge). Nor is a lay person's account of a medical professional's statements competent medical evidence because the medical information has been filtered through a lay person's sensibilities. Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (the connection between a layman's account, filtered through a layman's sensibilities, of what a doctor purportedly said is too attenuated and inherently unreliable to constitute medical evidence). Yet, a lay person is competent to testify about his own symptomatology or injury where the determinative issue is not medical in nature. Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995) (lay statements about a person's own observable condition or pain are competent evidence). And a lay person is competent to testify of the observable series of events leading to an injury. Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Thus, because the veteran is a lay person, his statement about the medic's assessment is not competent medical evidence that the veteran incurred frostbite during service. But the veteran's statements about wearing inadequate boots, the time he spent in an open truck, the fact that he was unable to stand when he debarked, and the appearance of the skin on his feet are all observable matters that do not require medical knowledge and as such, constitute competent evidence supporting the veteran's claim. So, too, is his testimony about not being exposed to extreme cold at any other time during his life. Although the veteran is an interested party in testifying to these facts, he is a credible witness and the record contains no evidence to show that his testimony should be rejected. Goss v. Brown, 9 Vet. App. 109, 113 (the Board does not have to accept the testimony of an interested party, but it must account for and explain its reasons for rejecting testimony). Given that the veteran incurred a cold injury at some time during life, was exposed to extremely cold temperatures only during service, and experienced an incident involving difficulty with his feet after wearing poorly insulated boots for several hours in an open truck, the evidence in the record is sufficient to conclude that the veteran incurred a cold injury to his feet bilaterally during active service. Although that conclusion is contrary to the negative evidence from the morning reports, the veteran's testimony about his conditions in Korea is consistent with the circumstances of his service in a cold place, as well as with the medical evidence from the C&P examination. Moreover, when there is an approximate balance of positive and negative evidence about a claim, reasonable doubt should be resolved in the claimant's favor. 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102. Accordingly, when all the evidence is considered, the second requirement for service connection has been met on this record. The third requirement for service connection requires a nexus between the veteran's current disability and the injury or disease incurred during service. This requirement is usually established by competent medical evidence. The veteran submitted a November 1997 statement by his physician that he had bilateral flat feet with large bunions. The physician attached an X-ray report showing that the veteran had a moderate hallux valgus deformity and that there had been previous arthrodesis on the left involving the talus, calcaneus, cuboid, and navicular. The veteran's physician opined that such findings could be consistent with chronic problems related to frost bite. This does not provide the needed nexus for two reasons. First, it does not specifically tie the veteran's current cold injury disability to his military service. Second, because he opined that it could be connected to frost bite, it is too speculative to rely on. Bloom v. West, 12 Vet. App. 185, 1987 (1999). The August 2004 C&P examiner found three conditions of the veteran's feet to be related to a cold injury, but he did not specifically connect those disabilities to the veteran's military service. Nevertheless, such a conclusion is logically required. If, as established above, the veteran has a disability due to a cold injury and the only cold injury he experienced was incurred during service, it necessarily follows that the current residuals of cold injury disability is connected to the cold injury incurred during service. Thus, the third requirement for service connection has been met on this record. All three requirements for service connection having been established, the veteran's claim is granted. Since the veteran's claim is granted, no discussion is necessary of how VA met its duty to notify the veteran concerning the information and evidence necessary to substantiate his claim and its duty to assist the veteran in obtaining such evidence. ORDER Service connection for residuals of cold injury, bilateral feet (claimed as frostbite) is granted. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs