Citation Nr: 0703988 Decision Date: 02/07/07 Archive Date: 02/14/07 DOCKET NO. 02-09 680 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for residuals of cold injury to the hands and feet. REPRESENTATION Veteran represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran, who is the appellant, served on active duty form November 1950 to October 1952. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A hearing before the undersigned Acting Veterans Law Judge was held in January 2004. A transcript of the hearing has been associated with the claims file. The Board remanded this case in August 2004. As the requested development has been completed, no further action is necessary to comply with the Board's remand directive. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT There is no competent medical evidence linking the veteran's current dermatological complaints and symptoms of the hands and feet to his inservice exposure to cold weather. CONCLUSION OF LAW Residuals of cold injury to the hands and feet were not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2006). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in March 2001. In the notice, the veteran was informed of the type of evidence needed to substantiate the claim of service connection, namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. The veteran was also informed that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. He was also asked to submit evidence, which would include that in his possession, in support of his claim. The notice also included the general provision for the effective date of the claim, that is, the date of receipt of the claim. As for content of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim, except for the degree of disability assignable). To the extent that the VCAA notice did not include the degree of disability assignable, since the claim is denied, no disability rating will be assigned, so there can be no possibility of any prejudice to the veteran with respect to any such defect in the VCAA notice required under Dingess at 19 Vet. App. 473. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. Repeated efforts were made to obtain the veteran's service medical records, sick reports, morning reports, and personnel records but all attempts were futile because the veteran's records were apparently destroyed in a fire in 1973. Further, the Office of the Surgeon also has no records pertaining to the veteran. Accordingly, it can only be concluded that these records no longer exist. Also, the RO made the appropriate attempts to obtain the veteran's private medical records and also obtained VA records. Lastly, the veteran was afforded a VA examination and a VA medical opinion was obtained. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that the duty-to-assist provisions of the VCAA have been complied with. REASONS AND BASES FOR FINDINGS AND CONCLUSION Law and Regulations For service connection to be granted for any disability, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre- existing service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the noted inservice condition is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Service connection is also possible for any disease initially diagnosed after discharge from 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). Service connection requires that there be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Background The veteran's DD 214 confirms that he served overseas for 5 months during the Korean Conflict and was awarded the Korean Service Medal. The veteran testified that he had not sought inservice medical treatment for residuals of cold injuries sustained in Korea, but he did report it at the time of the examination for service discharge. He testified that he was uncertain whether this complaint was actually recorded and made part of the service discharge examination report. The service medical records are unavailable except for the report of the service discharge examination which is negative for any skin abnormality. An additional search revealed no sick reports, morning reports, service personnel records, or records of the Office of the Surgeon General. The veteran also testified that he had been treated since the 1950s by private physicians for dermatological symptoms that were similar or identical to the chronic itching and scaling that he now has. He also testified that none of these physicians had stated that his dermatological symptoms were due to a cold injury. Private medical records from 1987 to 2002 shown that in November 1987 it was noted that the veteran had been hospitalized in the 1960s for cellulitis of the right arm. In January 1992, he was treated for cellulitis of the right lower extremity and in 1995 for dermatitis. He was seen for a leg rash in 2001. VA records from 1999 to 2004 show that in 1999 the veteran was see for dermatitis on each leg. The veteran was afforded a VA dermatology examination in March 2006 for the purpose of determining the etiology of his current dermatological symptoms. At that time his claim file and medical records were reviewed. After a physical examination the diagnosis was cold injury without residuals. The examiner commented that based on the examination, the veteran had no peripheral neuropathy, no history of arthritis or joint stiffness, and no scar from his remote cold injury. The examiner did note that the veteran had callosities on his heels and great toes and eczematous dermatitis of the palms. The examiner expressed the opinion that it was not possible to state whether the veteran had cold injury residuals without resorting to mere speculation. Legal Analysis Where the service medical records are unavailable, most likely destroyed by a fire in 1973 at the National Personnel Records Center, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The veteran's DD 214 confirms that he served overseas for 5 months during the Korean Conflict and was awarded the Korean Service Medal. While most of the service medical records are not available, the report of examination at separation from service was negative for any skin abnormality. The veteran did testify that he never sought or received treatment for a cold injury in Korea, but he did complain of having had a cold injury at the time of the service discharge examination. The medical evidence shows that since the 1960s the veteran has had skin disability, variously diagnosed as dermatitis and cellulitis, which established that he has a current disability. Also, the Board finds the veteran credible as to his statements and testimony that he suffered a cold injury during service, which satisfies the requirement of evidence of an in-service injury. The third element of service connection is medical evidence of a nexus between the claimed in-service injury and the current disability. On the question of the medical nexus, the only supporting evidence is the veteran's own testimony and belief that there is a nexus between his inservice cold injury and current skin symptoms but which is unsupported by medical evidence and does not account for the lapse of a number of years after service without medical complaint. Evidence of a prolonged period without medical complaint can be considered along with the availability of other medical records and other relevant facts. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Where as here, the determinative issue involves medical causation or a medical diagnosis, competent medical evidence of a nexus or relationship between the post-service diagnosis and service is required to support the claim. The veteran is a lay person and, so, is not competent to render a medical opinion as to the required nexus, which is essentially a medical determination. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). For this reason, the Board rejects the veteran's personal opinion as favorable evidence of a nexus between the events in service and the current skin symptoms. The only competent medical nexus evidence is the VA examiner's opinion that it is not possible to state whether the veteran had cold injury residuals without resorting to mere speculation, which can not be resolved by reasonable doubt, and opposes, rather than supports, the claim. As the Board may consider only independent medical evidence to support its findings, and for the reasons expressed, there is no medical evidence favorable to the claim of service connection for residuals of a cold injury as to the required nexus element, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for residuals of cold injury to the hands and feet is denied. ____________________________________________ GEORGE E. GUIDO JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs