Citation Nr: 0007579 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-08 394A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to service connection for the residuals of cold weather injury, including peripheral neuropathy of the lower extremities, right hand and right posterior skull. Entitlement to service connection for the postoperative residuals of a right inguinal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel INTRODUCTION The veteran had active service from March 1943 to June 1946 and from January 1949 to September 1949. This appeal arises from a September 1997 rating decision which denied service connection for the residuals of cold weather injury, including peripheral neuropathy of the right lower extremity, right hand and right posterior skull, and denied service connection for the postoperative residuals of a right inguinal hernia. This appeal also arises from May 1998 rating decision which denied service connection for peripheral neuropathy of the left lower extremity, claimed as a residual of cold weather injury. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claims has been obtained by the originating agency. 2. A diagnosis of bilateral inguinal hernia repair, asymptomatic, was reported in 1997; no medical evidence demonstrating that the veteran underwent a right inguinal hernia repair in active service has been submitted. 3. Diagnoses of peripheral neuropathy of the lower extremities, right hand and right posterior skull were made in 1997. 4. The veteran has testified that he was treated for swelling and a burning sensation of his feet and a burning sensation in the right hand and scalp following exposure to cold weather during maneuvers in Tennessee in 1944 and during the Battle of the Bulge in 1945. 5. A VA examiner reported in 1997 that the peripheral neuropathy of the lower extremities, right hand and right posterior skull were secondary to cold thermal injury from active duty and combat duty. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for the residuals of cold weather injury, including peripheral neuropathy of the lower extremities, right hand and right posterior skull is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 2. The veteran has not submitted evidence of a well-grounded claim for service connection for the postoperative residuals of a right inguinal hernia. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C.A. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the veteran has presented evidence that the claims are well grounded; that is, that the claims are plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. I. Peripheral neuropathy With respect to the veteran's claim for service connection for the residuals of cold weather injury, including peripheral neuropathy of the lower extremities, right hand and right posterior skull, the veteran testified in September 1998 that he was exposed to extremely cold weather while on maneuvers in Tennessee in 1944 and again, during the Battle of the Bulge, in 1945. On a cold injury protocol examination by the VA in September 1997 the findings included decreased sensation in both feet and in three fingers of the right hand and there was reported to be an area of neuropathy on the right posterior skull. The diagnoses included bilateral peripheral neuropathy involving both feet secondary to thermal cold injury sustained while on active duty in 1944; neuropathy, affected digits of right hand, secondary to cold thermal injury from 1944 combat duty; and peripheral neuropathy, right posterior skull secondary to thermal cold injury sustained while on active duty in 1944. As there is competent medical evidence or opinion of a causal relationship between the claimed disorders and the veteran's active duty service, the veteran's claim for service connection for the residuals of cold weather injury, including peripheral neuropathy of the lower extremities, right hand and right posterior skull, is found to be well- grounded. II. Postoperative residuals of a right inguinal hernia Turning to the issue of service connection for the postoperative residuals of a right inguinal hernia, the veteran has testified that he understood that he underwent a double hernia operation in service. The Board first notes that, while efforts have been made to secure them, not all of the veteran's service medical records are available for review. However, the records that are available, including information from the Office of the Surgeon General, Department of the Army, show that the veteran was hospitalized in January 1944 for repair of an inguinal hernia. In a June 1946 report of examination of the veteran for separation from service, findings included a well-healed left herniotomy scar from January 1944 and an appendectomy scar. No reference to any residuals of right inguinal hernia surgery were made. On a separation examination in September 1949, the findings included a well-healed scar, right lower quadrant, appendectomy; and a well-healed scar, left lower quadrant, herniorrhaphy, left thigh. Again, no references to any residuals of right inguinal hernia surgery were made. At the time of the September 1997 VA examination the veteran reported that he underwent surgical repair of bilateral inguinal hernias in 1944. While the diagnoses included bilateral inguinal hernia repair, asymptomatic, this was apparently based on the history given by the veteran as the examiner made no findings of any residuals of right inguinal hernia surgery. While, following a November 1998 VA cold injury protocol examination, the diagnoses again included bilateral inguinal hernia repair, this was apparently based on the veteran's medical history report as again the examination report included no findings of any residuals of right inguinal hernia surgery. The veteran has not submitted any medical opinion or other medical evidence which supports this claim. Given the evidence that is of record, this claim may not be considered well grounded. 38 U.S.C.A. § 5107. Since this claim is not well grounded, it must, accordingly, be denied. Grottveit v. Brown, 5 Vet. App. 91 (1993); Edenfield v. Brown, 8 Vet. App. 384 (1995). Although the Board has considered and disposed of the veteran's claim for service connection for the postoperative residuals of a right inguinal hernia on a ground different from that of the originating agency; that is, whether the veteran's claim is well grounded rather than whether he is entitled to prevail on the merits, the veteran has not been prejudiced by the Board's decision. In assuming that the claim was well grounded, the originating agency accorded the veteran greater consideration than his claim warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). To remand this case to the originating agency for consideration of the issue of whether the veteran's claim is well grounded would be pointless, and in light of the law cited above, would not result in a determination favorable to the veteran. VAOPGCPREC 16-92, 57 Fed. Reg. 49, 747 (1992). To submit a well-grounded claim, the veteran would need to offer competent evidence, such as a medical opinion, that there is a currently manifested disability which is related to service. Robinette v. Brown, 8 Vet. App. 69 (1995). Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for the postoperative residuals of a right inguinal hernia. 38 U.S.C.A. § 5107(a). Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. See Epps, 126 F.3d at 1469; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). ORDER The claim of entitlement to service connection for the residuals of cold weather injury, including peripheral neuropathy of the lower extremities, right hand and right posterior skull is well grounded. To this extent only, the appeal is granted. Entitlement to service connection for the postoperative residuals of a right inguinal hernia is denied. REMAND Because the claim of entitlement to service connection for service connection for the residuals of cold weather injury, including peripheral neuropathy of the lower extremities, right hand and right posterior skull, is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). While, as noted above, the examiner in 1997 reported that the veteran's peripheral neuropathy was related to events in service, following the VA medical evaluation in 1998, it was reported that a physician could not say that the veteran's peripheral neuropathy was due to frostbite and the Chief of the examination unit reported that he felt that the peripheral neuropathy was secondary to diabetes mellitus that was further complicated by obesity and proteinuria. The Board finds that the veteran's claim for service connection for service connection for the residuals of cold weather injury, including peripheral neuropathy of the lower extremities, right hand and right posterior skull, should be REMANDED to the Regional Office (RO) for the following action: 1. The RO should obtain the veteran's outpatient treatment records dated subsequent to May 1999 from the John J. Cochran VA Medical Center, St. Louis. All documents obtained should be associated with the veteran's claims file. 2. Thereafter, the RO should schedule the veteran for a VA examination by a neurologist. The neurologist is requested to review the veteran's claims file, including the service medical records, all VA reports of examinations and all VA and private treatment records. The veteran should then be examined. All necessary tests and studies should be conducted. Based on that examination, an interview with the veteran and a review of the record, the neurologist should proffer an opinion, with supporting analysis, as to whether it is at least as likely as not that the veteran's peripheral neuropathy of the lower extremities, right hand and right posterior skull was caused by his cold weather exposure during service. Reasons and bases for all conclusions should be provided. 3. After completion of the above, the RO should review the veteran's claim for service connection for the residuals of cold weather injury, including peripheral neuropathy of the lower extremities, right hand and right posterior skull. If the determination made is unfavorable to the veteran, a supplemental statement of the case that sets forth the evidence received since the July 1999 supplemental statement of the case should be provided to the veteran and his representative and they should be given an opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is obtain additional medical information. The Board intimates no opinion, either factual or legal, as to the ultimate outcome of this case. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals