Citation Nr: 0007881 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 97-23 876A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for residuals of frozen feet. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from April 1943 to October 1945. The veteran filed a claim in May 1997 for service connection for frozen feet. This appeal arises from the June 1997 rating decision from the Pittsburgh, Pennsylvania Regional Office (RO) that denied the veteran's claim for service connection for a frozen feet. A Notice of Disagreement was filed in July 1997 and a Statement of the Case was issued in July 1997. A substantive appeal was filed in August 1997 with no hearing requested. FINDINGS OF FACT 1. There is competent medical evidence linking the veteran's current disability of the feet to a frostbite injury in service; the claim is plausible. 2. Frostbite of the feet had its onset during military service. CONCLUSION OF LAW Frostbite of the feet was incurred during military service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(a) (West 1991); 38 C.F.R. 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service personnel records show that battles and campaigns he served in included Ardennes, France, Normandy, Rhineland, and Central Europe. The veteran's military occupational specialty was telephone and telegraph lineman. The veteran served with Btry A 29th F. A. Bn. Awards and decorations received include Good Conduct Medal and European African Middle Eastern Ribbon with 5 Bronze Service Stars. A separation record indicates that the veteran's military occupation was a telephone and telegraph lineman and he served with the wire section of a field artillery unit during the allied campaign in Europe. He laid wire between observation posts and battalion headquarters and from battalion headquarters to gun batteries. He installed switchboards and field telephones. He serviced lines and repaired breaks. He also operated a switchboard. On a service induction examination in March 1943, no history of foot problems was reported. On examination, the veteran's feet were clinically evaluated as normal. On a separation examination in October 1945, no history of foot problems was reported. On examination, the veteran's feet were clinically evaluated as normal. In May 1997, the veteran filed a claim for service connection for frozen feet. By rating action of June 1997, service connection for frozen feet was denied. The current appeal to the Board arises from this denial. In a statement in July 1997, the veteran reported that he did not have time to go to sick call for his feet in service due to the battle activity in the European Theater. On a VA examination in March 1998, it was noted initially that there were no medical records available for review. The veteran reported a history of being a World War II combat veteran who served with the Fourth Division at the Battle of the Bulge in December 1944. At that time, he served in an infantry unit and was exposed to the elements for 24 hours without a break. During this offensive, the temperatures reached as low as 33 degrees below zero. He described that at that time, both of his feet were blue to above the ankle. As to treatment, he apparently was treated with a snow pack in the field. He had not had any treatment since service. The veteran denied any digital amputations but did have a toenail removed from his right great toe. He had cold sensitization and hyperhidrosis when it was hot. He had paresthesia and numbing of both feet. He had recurrent fungal infections. The veteran had a dystrophic nail on the great toe of both feet. There was only a small remnant remaining on the right. The veteran described that his cold feet kept him awake at night. His feet were cold no matter the season. The only treatment that the veteran had used over the years was to wear insulated stockings. The diagnoses included frostbite, onychomycosis secondary to frostbite and possible peripheral vascular disease secondary to frostbite. The veteran was to have additional testing done. A VA podiatry record from April 1998 indicates that the veteran reported a history of thermal injury. He was being seen for analysis of fungus of the left hallux. A Lotrimin solution was prescribed. On a July 1998 VA addendum to the March 1998 VA examination, it was reported that Doppler studies had been performed on both of the veteran's legs which revealed marked blunting of the impulses in his hallux on the right side, which was certainly consistent with a probable frostbite injury in the past. The x-rays were normal. A podiatry consult was obtained, but the results were not available. However, it was believed that enough information was available from the diagnostic tests performed that a decision should be able to be made. The impression included frostbite, particularly right foot. In a statement in December 1998, the veteran's wife reported that the veteran had to wear insulted shoes and his feet were always cold as ice. He would wake up during the night to try to get his feet warm. II. Analysis A claimant seeking benefits under a law administered by the Secretary of the Department of Veteran Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, to sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of either medical causation or diagnosis, medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). In particular, establishing a well-grounded claim for service connection generally requires medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97-7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). The second and third Caluza elements can also be satisfied by evidence that a condition was "noted" during service or during an applicable presumption period; evidence showing post-service continuity of symptomatology; and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In the case of a disease only, service connection also may be established by evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statue or regulation, during the applicable presumption period and present disability from it. Savage, 10 Vet. App. at 495. Additionally, where a claim for service connection is brought by a veteran who engaged in combat, the Board must apply 38 U.S.C.A. § 1154 (West 1991), which provides that satisfactory lay or other evidence that a disease or an injury 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 if there are no official records indicating service incurrence. 38 U.S.C.A. § 1154. In other words, this statute serves to make it easier for a combat veteran to meet the first requirement of establishing a well-grounded claim for service connection. However, the statute does not address the second and third requirements in establishing a well-grounded claim; that is, the question of either current disability or nexus to service, both of which require competent medical evidence. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) and Rabideau v. Derwinski, 2 Vet. App 141, 144 (1992). In summary, the provisions of 38 U.S.C.A. § 1154 serve only to relax the evidentiary requirements for determining what happened in service. The veteran must still meet the other criteria necessary to establish a well-grounded claim, including providing competent evidence of a current disability and medical evidence showing a nexus between a current disability and service. See Arms v. West, 12 Vet App 188 (1999). The veteran is claiming that he currently has residuals of frozen feet that were incurred during combat service. In view of the veteran's service in Europe during World War II during which time he served with a field artillery unit during the allied campaign in Europe laying wire in a combat zone, the Board will concede that he had combat service. In accordance with 38 U.S.C.A. § 1154, the veteran has met the first requirement under Caluza of establishing a well- grounded claim. He has also presented evidence of a nexus between the in-service frostbite and his currently diagnosed frostbite. In this regard, a VA physician, after noting the veteran's history of frostbite in service, diagnosed him with this same condition. Because his service episode of frostbite is the only one mentioned to the physician, the Board finds that this is sufficient to well ground his claim. See Hodges v. West, No. 98-1275 (U.S. Vet. App. Jan. 12, 2000). Therein, the veteran presented a diagnosis of post- traumatic arthritis of the knees. In service, there was evidence of treatment of a knee injury. The diagnosis by a physician was post-traumatic arthritis of the knees, which the Court noted was based solely on the reported knee injury in service. The veteran's claim is well grounded. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated by service. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). The first postservice evidence of a foot disability was many years postservice. This evidence is contained in the VA examination reports from March 1998 and July 1998 wherein the veteran was diagnosed with frostbite consistent with a probable frostbite injury in the past. The only history of frostbite was that in service. As the veteran has been diagnosed by a VA physician as having frostbite attributable to military service and there is no evidence to the contrary, service connection is established for residuals of frostbite. ORDER Entitlement to service connection for residuals of frozen feet is granted. Iris S. Sherman Member, Board of Veterans' Appeals