Citation Nr: 0003790 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-08 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals of frostbite of the feet. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Associate Counsel INTRODUCTION The veteran had active duty from February 1943 to November 1945. This appeal arises from a September 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the veteran's claim seeking entitlement to service connection for residuals of frostbite of the feet. FINDING OF FACT The claims files includes medical evidence indicating that the veteran may have frostbite of the feet that is related to his service. CONCLUSION OF LAW The claim for frostbite of the feet is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). If a condition noted during service is not shown to be chronic, then generally a continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of 38 C.F.R. § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). To establish that a claim for service connection is well grounded, a veteran must demonstrate a medical diagnosis of a current disability; medical, or in certain circumstances, lay evidence of inservice occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an inservice disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d. 1464 (1997). The veteran asserts that he had frozen feet while fighting in Europe in February 1945. In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see generally Peters v. Brown, 6 Vet. App. 540, 543 (1994). The effect of this law is that service connection will not be precluded for combat veterans simply because of the absence of notation of a claimed disability in the official service records. The law does not, however, create a presumption of service connection, and service connection remains a question which must be decided based on all the evidence in the individual case. See Smith v. Derwinski, 2 Vet. App. 137 (1992). The veteran's discharge shows that his awards include the Purple Heart, and that his military occupation specialty was heavy mortar crewman. Service medical records show treatment in Luxembourg for knee injuries caused by an enemy artillery shell. Based on the foregoing, the Board finds that the veteran is qualified for the combat veteran's special consideration under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d). The Board further notes that the veteran's service medical records include a report, dated in February 1945, which shows that he was treated in Luxembourg for injuries to his knees caused by an enemy artillery blast. At that time, he was noted to have mild frostbite of the toes of the left foot due to exposure. A second report, also dated in February 1945, notes mild frostbite to the left foot and toes. Finally, the claims files include a VA cold injury protocol (CIP) examination report, dated in September 1998, which shows that the impressions included status post frozen feet in World War II, and noted vascular compromise to both feet. The examiner further stated that he had consulted with a physician at the University Medical Center at Ohio State University (OSU), and that, "[I]t is at least as likely as not that some of his feet problems are a result of his frozen feet in World War II." Under the circumstances, the Board finds that the veteran's assertions, his service medical records, and the aforementioned VA examiner's opinion are sufficient to constitute medical evidence of frostbite of the feet, and a nexus to active duty, such that the veteran's claim for frostbite of the feet is well grounded within the meaning of 38 U.S.C.A. § 5107(a)(West 1991). ORDER The veteran's claim of entitlement to service connection for frostbite of the feet is well-grounded. To this extent, the appeal is granted subject to the following remand provisions. REMAND The veteran asserts that he was exposed to extreme cold during service in Europe during World War II. As stated previously, the veteran's service medical records include a report, dated in February 1945, which shows that he was treated in Luxembourg for injuries to his knees caused by an enemy artillery blast. At that time, he was noted to have mild frostbite of the toes of the left foot due to exposure. A second report, also dated in February 1945, notes mild frostbite to the left foot and toes. The remainder of the veteran's service medical record is negative for complaints, findings, diagnoses or treatment for the residuals of frozen feet during service. The Board initially notes that the medical records are silent as to complaints, treatment or a diagnosis involving frozen feet until at least 1981, at which time the veteran was diagnosed with peripheral vascular disease (PVD), varicose veins in the lower legs, and obesity. A VA hospital report, dated in March 1982, show diagnoses of degenerative arthritis of both knees, mild hypertension, under control with diet, mild glucose intolerance, mild obesity and gout by history. Reports from the Grant Medical Center, dated between 1994 and 1996, are remarkable for diagnoses of diabetes mellitus. Records from the Fayette County Memorial Hospital (FCMH), dated between 1992 and 1997, include a report dated in June 1992, which contains diagnoses of arteriosclerotic vascular disease of great toe and ball of foot, cellulitis and abscess of foot, with infection, gangrene. The FCMH reports also show that in June 1992 the veteran underwent an amputation of his right great toe. These reports contain notations indicating that the veteran had received treatment for foot ulcers and claudication treated with vascular surgery in September 1989, at Riverside Hospital. In February 1995, the veteran was treated for left foot drop. The impressions in an electromyographic examination report noted nerve denervation in the left foot, and evidence of peripheral neuropathy. A report from an OSU physician, dated in December 1996, states that the veteran has severe post-traumatic osteoarthritis, bilaterally. He has "an additional problem which he believes is related to his service, and that was frostbitten feet, and then he had peripheral arterial disease bilaterally with a bilateral venous graft imposed and a right metatarsal amputation." The claims file contains a September 1998 VA CIP examination report in which the examiner stated that it was at least as likely as not that some of the veteran's foot problems were a result of his frozen feet in World War II. In February 1999, the RO requested an opinion from the examiner who performed the September 1998 VA CIP examination report, as to "[W]hether it is as likely as not that the veteran's bilateral peripheral vascular disease is due to his frostbite of the toes of the left foot; or whether the bilateral peripheral vascular disease is more likely to be due to other causes." In an addendum to the September 1998 VA CIP examination report, dated in February 1999, the examiner stated that he could not provide an "unequivocal opinion" as requested by the RO. A report from the Park Medical Center, dated in April 1999, contains the opinion of a physician who stated that, "[I]t more likely than not that the patient's gangrene and loss of toes on the left foot are related to peripheral arterial disease unrelated to prior cold injury to the feet." VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(a); Talley v. Brown, 6 Vet. App. 72, 74 (1993). This duty includes conducting a thorough and contemporaneous medical examination of the veteran. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Furthermore, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case, given the complex history and nature of the veteran's claim, which may include a history of frostbite, peripheral vascular disease, gout, diabetes, hypertension and obesity, and the possibility that relevant treatment records may exist which are not currently of record, the Board is convinced that a remand is required to attempt to obtain such records, followed by providing the veteran with a comprehensive podiatry examination in order to determine the nature and etiology of the veteran's foot disorders. Accordingly, this case is REMANDED for the following action: 1. The RO should ask the veteran to provide the names and addresses and dates of treatment for all medical care providers who have provided treatment for his feet since separation from service which are not currently associated with the claims file, to include treatment from Riverside Hospital in 1989, as well as any treatment at VA facility in Chillicothe. After securing any necessary releases, the RO should obtain these records. The veteran should also be advised that although he has reported that physicians at a VA facility in Chillicothe, and at FCMH, have told him that he currently has one or more foot disorders which are related to frozen feet during service, such opinions are not currently associated with the claims file, and he may wish to obtain them is support of his claim. 2. The veteran should be afforded a special vascular VA examination. All indicated tests and studies should be accomplished. It is imperative that the physician review and have access to the entire claims folders prior to, and at all times pertinent to, the examination. The examiner should render an opinion as to whether it is at least as likely as not that the veteran currently has a foot disorder that is the result of frostbite incurred during service. All clinical findings and opinions, and the bases therefor, should be set forth in a detailed typewritten report. 3. After the action requested in the above paragraph has been completed, the RO should adjudicate the issue of service connection for residuals of frozen feet, on the basis of all the evidence of record. 4. If the benefit sought on appeal is not granted, the veteran, and his representative, if any, should be furnished a supplemental statement of the case and be afforded the applicable opportunity to respond thereto. Thereafter, the record should be returned to the Board for further appellate review, if in order. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. BRUCE KANNEE Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).