BVA9504066 DOCKET NO. 92-08 326 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for left foot frostbite residuals. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD Robert B. Swanson, Associate Counsel INTRODUCTION The veteran had active service from October 1943 to November 1945. In his May 1991 application for service connection, the veteran indicated that he had been a prisoner of the German Government in 1944. His service medical records and service separation documents do not, however, indicate that he was a prisoner of war. In February 1993 and March 1994, the Board remanded the veteran's case, in part, for verification of his prisoner of war status. The Board asked the RO to secure the veteran's service personnel records. In April 1993, the RO asked the National Personnel Records Center (Center) to verify the veteran's prisoner of war status. Later the same month, the Center responded that it was unable to verify the veteran's prisoner of war status because the veteran's service records had apparently been lost in a fire at the Center. The Board also asked the RO to secure records, if any, from the Military Reference Branch of the National Archives. In May 1994, the RO asked the veteran to provide necessary details about his internment including the dates and places of captivity, but he failed to respond. The RO was, therefore, unable to request records from the Military Reference Branch as the RO was unable to provide the Branch with specific details with which to predicate a search. Accordingly, the veteran's prisoner of war status remains unverified. In any event, due to the fact that the evidence is not found to demonstrate any residuals of frost bite, the matter of whether the veteran was a prisoner of war is not relevant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1991 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has left foot frostbite residuals due to a cold injury sustained during service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met his initial burden of submitting evidence to justify a belief by a fair and impartial individual that his claim for service connection for left foot frostbite residuals is well-grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been requested by the RO. 2. The evidence of record does not show that the veteran has residuals of a cold injury to his left foot. CONCLUSION OF LAW The veteran has not submitted sufficient evidence to support a well-grounded claim for service connection for left foot frostbite residuals. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.307(a), 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking service connection for left foot frostbite residuals. The threshold issue is whether he has submitted evidence to support a well-grounded claim, that is, a claim which is plausible, as required by 38 U.S.C.A. § 5107(a) (West 1991). The Board finds, as discussed below, that he has not presented evidence to support a well-grounded claim. The veteran's report of military separation does state that he was in the European Theater from June 1944 until August 1945 and that he was credited with participation in various campaigns including Rhineland, Northern France, and Ardennes. In January 1992, the veteran and his spouse testified at a hearing that was held at the RO. The veteran related that he sustained frostbite injury to his left foot while on the front line in the wintertime in Europe. He indicated that his foot was treated by a medic, but that there was no record of such treatment because they did not keep records of treatment in the field. He stated that he told the examining physician about his foot during his examination for separation from service, but that the examiner did not record the frostbite injury apparently because, at that time, the service was separating many service personnel. He indicated that there were two witnesses to his frostbite injury, but that he was unable to secure statements from them because he did not know how to locate one and the other one was deceased. He asserted that he was treated by a private physician about three to four months after his separation. This physician did not prescribe any treatment for the foot but simply advised that it be watched. It was indicated that the treating physician was deceased, but that the veteran would attempt to secure his treatment records from the physician's widow. He requested a thirty day extension in order to attempt to secure copies of the treatment records, and the hearing officer granted his request. No such records were submitted. In June 1993, a special VA peripheral vascular examination was conducted. During the examination, the veteran reported that he sustained a frostbite injury to his left foot during service, and that he had about a one-year symptomatic history with complaints of intermittent burning and tingling in the plantar aspect. The clinical findings were unremarkable. The diagnosis was normal left foot with a prior reported history of frostbite, but with no permanent damage to the left foot, including no vascular compromise. The examiner indicated that the veteran's recent symptoms were likely due to some small peripheral nerve injury. Service connection is granted for disabilities that result from disease or injury suffered during service. 38 C.F.R. § 3.303. Satisfactory lay or other evidence that an injury or disease was incurred in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence. 38 C.F.R. § 3.304. As indicated above, the veteran's report that he had sustained cold injury would be consistent with the conditions of service as he had combat service in the wintertime. However, apart from the fact that there is no contemporaneous documentation of a cold injury in service, there is no clinical evidence that he currently has residuals of a cold injury. The veteran's service medical records are negative with respect to treatment of a cold injury. The veteran has explained that he was treated by a medic subsequent to a left foot cold injury, and that no records were made at the time. Additionally, the report of his examination for separation from service is devoid of any complaints, symptoms, findings, or diagnosis of cold injury residuals. Subsequent to service, there are no records of treatment of a cold injury. Shortly after his separation, in November 1945, the veteran filed a claim with the VA for service connection for various disabilities, but he did not seek service connection for the residuals of a cold injury to his left foot. Specifically, the claim was for residuals of a rat bite and for pain in the right foot, first noticed about September 1945. No mention was made of cold injury residuals of the left foot. The veteran also averred in his hearing that he was seen for other complaints by a private physician shortly after his separation, three to four months afterwards, and that he mentioned the coldness of the left foot to the physician who simply advised that the condition be watched. The veteran was granted thirty days from the date of his hearing to submit any available records of this physician. The Board notes that no such records have been submitted. During a recent special VA peripheral vascular examination, the examiner found that the veteran had a normal left foot with a prior reported history of frostbite, but with no permanent damage to the left foot, including no vascular compromise. Although the veteran claims that he sustained a cold injury to his left foot during service and that he currently has residuals of that injury, he has not submitted any medical documentation to substantiate his claim as required to state a well-grounded claim. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Moreover, his opinion about the etiology of his present disability, if any, is without supporting evidence sufficient to render his claim well-grounded as he has not submitted any documentation to show that he is competent to render a medical opinion. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Accordingly, the Board finds that the veteran's claim for service connection for left foot frostbite residuals is not well- grounded. 38 U.S.C.A. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307(a), 3.309. ORDER The claim for service connection for left foot frostbite residuals is not well-grounded, and it is, therefore, dismissed. JAMES R. ANTHONY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.