Veteranclaims’s Blog

January 27, 2023

Single Judge Application; Mr. Likins may request a copy of his Official Military PersonnelFile (OMPF) by writing to NPRC and noting that the OMPF “will also provide medical records, theDA Form 20, duty and unit assignments, and orders of personnel actions such as promotions, awards,and commendations.”;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0929
JOHN R. LIKINS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, John R. Likins, through counsel, seeks review of a
November 20, 2008, Board of Veterans’ Appeals (Board) decision that denied entitlement to service
connection for residuals of a bilateral foot injury due to cold weather exposure, i.e., frostbite. Both
parties filed briefs, and the appellant filed a reply brief. This appeal is timely, and the Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate
because the outcome in this case is controlled by the Court’s precedents and “is not reasonably
debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the
Court will affirm the Board’s November 2008 decision.
I. FACTS
Mr. Likins served on active duty in the U.S. Army from September 1954 to September 1956.
Record (R.) at 58. Service medical records (SMRs) do not indicate any injury, incident, or
abnormalities with respect to Mr. Likins’s feet, including an August 1954 induction and July 1956
separation examination medical reports and reports of medical history. R. at 804-08, 812-15. The
remainder of the SMRs are from the U.S. Army Hospital in Muenchweiler, Germany, that include
x-ray reports dated in November 1954 for Mr. Likins’s right knee (R. at 820-21), clinical records and
consultation report from November 1954 regarding his right knee (R. at 830), an immunization
register noting doses administered from September 1954 through November 1955 (R. at 827-28),
laboratory bloodwork results dated July 1956 (R. at 823), and a routine chest x-ray report dated in
July 1956 (R. at 825). During his July 1956 separation examination, the examiner determined that
Mr. Likins’s feet and lower extremities were “normal.” R. at 814-15. Similarly, Mr. Likins’s July
1956 report of medical history on separation noted that he did not have any trouble with his feet in
service. R. at 812.
The instant appeal stems from a December 1996 claim filed by Mr. Likins for service
connection for frostbite to both of his feet. R. at 798-801. In April 1997, a VA regional office (RO)
denied his claim because the SMRs that he submitted contained no evidence of treatment for
frostbite or any treatment of residual conditions associated with frostbite, and he had not submitted
any evidence of treatment since discharge. R. at 777-78. In July 1997, the National Records
Personnel Center (NPRC), in response to an RO request for “all SMRs,” forwarded service records
to the RO. R. at 802. The top half of the form consisted of the RO’s request and the bottom half of
the form consisted of NPRC’s response. Id. The NPRC checked off boxes on the form that indicated
the types of records enclosed. Id. The available enclosed records were the physical examinations
at entrance and separation, clinical records, dental records, and medical records. R. at 802. There
is no notation on the form from the NPRC that any portion of the veteran’s SMRs or personnel
records were destroyed by the 1973 fire at the NPRC in St. Louis, Missouri. See R. at 802.
In November 1997, Mr. Likins filed a Notice of Disagreement (NOD) and submitted
outpatient treatment records from a Kansas City VA medical center (VAMC) dated from June to
November 1997, including a November 1997 report from his primary care physician stating that
Mr. Likins suffered from chronic, bilateral foot pain, “prob[ably] due to frost bite injury in service.”
R. at 750-62, 761, 774 (NOD). The physician noted that Mr. Likins “[s]uffered frostbite in the 1950s
while on active duty in [G]ermany [and] now complains of 4-6 [years] history of progressive
bilateral foot pain with color changes.” R. at 750. The RO issued a Statement of the Case
maintaining its denial of his claim. R. at 748-49. In his January 1998 appeal to the Board,
Mr. Likins stated that he was treated for frostbite in a field hospital in Germany in 1955. R. at
742-43. He noted his belief that records of his one-day stay were kept by the Army. Id.
2
In March 1998, Mr. Likins gave sworn testimony before a hearing officer at an RO. R. at
720-38. He testified that in January or February 1956, he experienced frostbite of both lower
extremities while performing maneuvers near Pirmasens, Germany, with his transportation unit, the
509th Quartermaster Company. R. at 720-38, 737. He recalled being positioned in a foxhole for two
or three nights at a time when the temperature was 22 degrees below zero. R. at 728. He testified
that he became extremely cold and was unable to walk and was taken to a tent field hospital located
nearby where his feet were inspected by the medical staff who were concerned with their color. R. at

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0929
JOHN R. LIKINS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, John R. Likins, through counsel, seeks review of a
November 20, 2008, Board of Veterans’ Appeals (Board) decision that denied entitlement to service
connection for residuals of a bilateral foot injury due to cold weather exposure, i.e., frostbite. Both
parties filed briefs, and the appellant filed a reply brief. This appeal is timely, and the Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate
because the outcome in this case is controlled by the Court’s precedents and “is not reasonably
debatable.” Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the
Court will affirm the Board’s November 2008 decision.
I. FACTS
Mr. Likins served on active duty in the U.S. Army from September 1954 to September 1956.
Record (R.) at 58. Service medical records (SMRs) do not indicate any injury, incident, or
abnormalities with respect to Mr. Likins’s feet, including an August 1954 induction and July 1956
separation examination medical reports and reports of medical history. R. at 804-08, 812-15. The
remainder of the SMRs are from the U.S. Army Hospital in Muenchweiler, Germany, that include
x-ray reports dated in November 1954 for Mr. Likins’s right knee (R. at 820-21), clinical records and
consultation report from November 1954 regarding his right knee (R. at 830), an immunization
register noting doses administered from September 1954 through November 1955 (R. at 827-28),
laboratory bloodwork results dated July 1956 (R. at 823), and a routine chest x-ray report dated in
July 1956 (R. at 825). During his July 1956 separation examination, the examiner determined that
Mr. Likins’s feet and lower extremities were “normal.” R. at 814-15. Similarly, Mr. Likins’s July
1956 report of medical history on separation noted that he did not have any trouble with his feet in
service. R. at 812.
The instant appeal stems from a December 1996 claim filed by Mr. Likins for service
connection for frostbite to both of his feet. R. at 798-801. In April 1997, a VA regional office (RO)
denied his claim because the SMRs that he submitted contained no evidence of treatment for
frostbite or any treatment of residual conditions associated with frostbite, and he had not submitted
any evidence of treatment since discharge. R. at 777-78. In July 1997, the National Records
Personnel Center (NPRC), in response to an RO request for “all SMRs,” forwarded service records
to the RO. R. at 802. The top half of the form consisted of the RO’s request and the bottom half of
the form consisted of NPRC’s response. Id. The NPRC checked off boxes on the form that indicated
the types of records enclosed. Id. The available enclosed records were the physical examinations
at entrance and separation, clinical records, dental records, and medical records. R. at 802. There
is no notation on the form from the NPRC that any portion of the veteran’s SMRs or personnel
records were destroyed by the 1973 fire at the NPRC in St. Louis, Missouri. See R. at 802.
In November 1997, Mr. Likins filed a Notice of Disagreement (NOD) and submitted
outpatient treatment records from a Kansas City VA medical center (VAMC) dated from June to
November 1997, including a November 1997 report from his primary care physician stating that
Mr. Likins suffered from chronic, bilateral foot pain, “prob[ably] due to frost bite injury in service.”
R. at 750-62, 761, 774 (NOD). The physician noted that Mr. Likins “[s]uffered frostbite in the 1950s
while on active duty in [G]ermany [and] now complains of 4-6 [years] history of progressive
bilateral foot pain with color changes.” R. at 750. The RO issued a Statement of the Case
maintaining its denial of his claim. R. at 748-49. In his January 1998 appeal to the Board,
Mr. Likins stated that he was treated for frostbite in a field hospital in Germany in 1955. R. at
742-43. He noted his belief that records of his one-day stay were kept by the Army. Id.
2
In March 1998, Mr. Likins gave sworn testimony before a hearing officer at an RO. R. at
720-38. He testified that in January or February 1956, he experienced frostbite of both lower
extremities while performing maneuvers near Pirmasens, Germany, with his transportation unit, the
509th Quartermaster Company. R. at 720-38, 737. He recalled being positioned in a foxhole for two
or three nights at a time when the temperature was 22 degrees below zero. R. at 728. He testified
that he became extremely cold and was unable to walk and was taken to a tent field hospital located
nearby where his feet were inspected by the medical staff who were concerned with their color. R. at721.

Mr. Likins recalled hospital personnel keeping a record of the length of time his feet were in
water and then wrapped in blankets. R. at 736. He was released after about 12 hours and returned
to his unit. R. at 722. A few days later he noticed that his feet turned a different color and the skin
peeled off. R. at 722-23.
Mr. Likins testified that he believed there are SMRs missing from his file because the claims
file does not contain any report of the treatment for his feet while in the Army field hospital in
Germany. R. at 736. He testified that he believed some of his records were burned in the 1973
St. Louis fire because the field hospital records are incomplete and the records that he does have
show that “water and fire has singed some” of them. R. at 736.
Following a 1998 Board remand for additional development, Mr. Likins underwent a VA
cold injury protocol examination in September 1998 at the Kansas City VAMC. R. at 676-81. The
examination report noted Mr. Likins’s reported history and symptomatology. R. at 676. The
examiner viewed x-rays from 1997 and diagnosed bilateral plantar fasciitis and a “cold injury to the
left foot with residual cold sensitivity.” Id. at 681. He explained that Mr. Likins’s symptomatology
relating to plantar fasciitis was not related to cold exposure in service, but that his “sensitivity with
associated parathesias and numbness is secondary to the cold injury which he suffered while in
Germany in 1955.” Id.
In response to an RO request for clarification on the etiology of any disability of the feet
(R. at 674-75), in December 1998 the same VA examiner set forth the account provided by Mr.
Likins regarding the events in service with respect to his foot, noted his prior diagnosis, and stated:
“I believe that Mr. Likins suffered cold injury during service in Germany 1955-1956 and has residual
3
symptoms of cold injury due to his military service. The patient’s C-file was examined in detail
along with the inservice records that were available.” R. at 669-70.
Following a May 1999 Board decision denying the claim, Mr. Likins appealed to the Court
and, in February 2001, the Court remanded the claim pursuant to the parties’ joint motion for remand.
R. at 632-37 (Likins v. Principi, No. 99-1646 (Vet. App. Feb. 22, 2001)), 644-50. The parties
agreed to remand the claim for a VA medical examination to determine whether Mr. Likins has any
residuals of a cold injury or frostbite of the feet and to discuss the facts and medical principles
involved concerning Mr. Likins’s asserted cold injury to his feet and to obtain Mr. Likins’s unit
morning reports for the winter of 1955-56 to determine whether Mr. Likins was treated for frostbite
in the field. R. at 634-35. The Board remanded the matter to the RO.
Treatment notes dated in 1999 through 2001 from the VAMC indicated that Mr. Likins was
seen for follow-up foot care and included examiner’s notation of “chronic foot pain due to frostbite
injury in service.” R. at 555-92. On more than one occasion, the examiner “encouraged [Mr. Likins]
to cont[inue] to pursue service connect[ion]” for his frostbite injury. R. at 582, 588.
In October 2001 and then again in March 2003, pursuant to the remand, the RO submitted
requests to the NPRC for copies of morning reports for the period December 1, 1955, to March 1,
1956, the period during which Mr. Likins was assigned to the 509th Quartermaster Company in
Germany. R. at 449, 547. 1 In March 2003, the NPRC responded that the morning reports contained
no remarks regarding Mr. Likins’s frostbite or medical treatment of any kind. R. at 449-51. The
NPRC forwarded a copy of the morning report dated January 17, 1956, noting the assignment of
Mr. Likins to the 509th Quartermaster Company, 7th Army, Rhine Ordinance Barracks APO 227,
in Kaiserslautern, Germany. R. at 450.
1 It took three RO requests and approximately 18 months to obtain the information from NPRC because of
imprecisely worded requests from the RO. The NPRC initially responded that its search was inconclusive because it was
not clear what information the RO was seeking. R. at 551. In February 2003, the RO made a second request, specifying
that it was seeking reports from December 1955, January 1956, and February 1957 “to determine whether [the] vet[eran]
was treated for frostbite while in [the] field.” R. at 550. The NPRC responded that it had searched the morning reports,
but that they contained no remarks pertaining to Mr. Likins’s illness, injury, or treatment. R. at 549. In March 2003, the
RO made a third request for morning reports, dated from December 1955 to March 1956. R. at 547. It explained that
it was changing the dates because it had incorrectly listed February 1957 in the previous request. It also specified that
it needed copies of any such reports. Id.
4
Mr. Likins underwent an additional VA medical examination in April 2003, during which
the examiner noted that Mr. Likins had slowed nail growth and no hair growth on his feet, and that
Mr. Likins’s left foot was pale and colder than his right foot. R. at 473-74. The examiner then
diagnosed him as having “cold intolerance due to previous cold exposure during maneuvers in 1955
in Europe.” Id. The examiner noted that Mr. Likins has had a progressive 10-year history of
increasing intolerance to cold with difficulty walking any long distance the last several years. R. at
473-74. The examiner opined that Mr. Likins had “symptoms as likely as not due to cold damage
occurring while in service.” R. at 474. In May 2003, the RO issued a Supplemental Statement of
the Case that maintained its denial of Mr. Likins claim because the record contained no objective
evidence that he suffered a cold injury during service. R. at 460-69.
In October 2003, the Board found that the clinical evidence of record did not demonstrate
that Mr. Likins had residuals of frostbite of his feet as a result of his active service and denied
entitlement to service connection for such residuals. R. at 416-29. In January 2006, the Court
vacated the Board’s decision and remanded the claim for further development; specifically, the Court
directed VA to make reasonable efforts to obtain Mr. Likins’s unit history records or other records
that might corroborate Mr. Likins’s assertion that he was treated for frostbite in service. R. at 340-45
(Likins v. Nicholson, No. 04-0209 (Vet. App. Jan. 4, 2006)). The Court notes that at that time Mr.
Likins was represented by the attorney who is presently representing him.
On remand, in April 2007, the RO submitted a request to the Department of the Army, U.S.
Army and Joint Services Records Research Center (JSRRC) (formerly the United States Armed
Services Center for Research of Unit Records (USASCRUR)) in Alexandria, Virginia, for “research
of unit records that may be in your possession for the purpose of verifying the weather and/or reports
of frostbite, and if the unit was engaged in field maneuvers.” R. at 268-69. The RO provided
information concerning the name of the unit and relevant dates of asserted activity. R. at 268. The
USASCRUR responded, stating that Mr. Likins may request a copy of his Official Military Personnel
File (OMPF) by writing to NPRC and noting that the OMPF “will also provide medical records, the
DA Form 20, duty and unit assignments, and orders of personnel actions such as promotions, awards,
and commendations.”
R. at 45.
5
In November 2007, the RO again wrote to the JSRRC and this time stated that it needed a
copy of Mr. Likins’s “Army unit history records, as well as any other information that could
corroborate the veteran’s claim, for the winter of 1955 to 1956, to determine whether the veteran was
treated for frostbite while in service.” R. at 43. The RO provided identifying information, including
unit and dates of assignment. Id. In a December 2007 letter to the RO, the JSRRC stated: “We were
unable to locate any records for the 509th Quartermaster Petroleum Depot for the time period 1955-
1956.” R. at 41-42. The JSRRC again referred the RO to the NPRC. Id.
An internal memorandum dated March 12, 2008, from Roy A. Schumacher, VA Military
Record Specialist, was added to the claims file. R. at 38-39. The VA specialist made a formal
finding of a lack of information to verify the cold weather exposure described by Mr. Likins while
assigned to the 509th Quartermaster Company. Id. The specialist determined that all avenues to
obtain the needed information had been exhausted and that additional efforts would be futile and
that the incident of cold weather exposure is “unverifiable.” R. at 38. Mr. Likins was notified of this
determination in a March 2008 Supplemental SOC. R. at 35-36.
On November 20, 2008, the Board issued the decision on appeal denying entitlement to
service connection for residuals of a bilateral foot injury due to cold weather exposure. R. at 3-15.
This appeal followed.
II. ANALYSIS
The appellant essentially makes two main arguments on appeal, both of which concern
whether the Board provided adequate reasons or bases, pursuant to 38 U.S.C. § 7104(d)(1), for its
denial of service connection for residuals of a bilateral foot injury due to cold weather exposure:
First, he contends that the Board failed to provide an adequate statement of reasons or bases for
concluding that the statements and testimony of the appellant were less than credible. Appellant’s
(App.) Brief (Br.) at 13-20; Reply Br. at 1-3. In this regard, the appellant asserts that there is
“substantial evidence” that all of his SMRs are not in the claims file because they were destroyed by
the 1973 fire at the NPRC and, therefore, the Board has a heightened duty to consider his lay
testimony. App. Br. at 12, 18-20.2 Second, the appellant also argues that the Board’s finding that
2 Because the appellant does not present any argument directed to VA’s duty to assist, the Court considers the
appellant to have abandoned any duty-to-assist argument on appeal. See Ford v. Gober, 10 Vet.App. 531, 535 (1997).
6
his current foot disability was not service connected was clearly erroneous because the Board
improperly substituted its judgment for the favorable “uncontroverted” medical examiners’ opinions
of record and improperly rejected evidence in his favor. App. Br. at 20-23. The Secretary refutes
the appellant’s contentions and urges the Court to affirm the Board’s decision. Secretary’s Br. at 9-
19.
The Board is required to provide a written statement of the reasons or bases for its findings
and conclusions on all material issues of fact and law presented on the record; the statement must
be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as
to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527
(1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board
must analyze the credibility and probative value of the evidence, account for the evidence that it
finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert,
supra.
The appellant’s primary argument is that the Board clearly erred in determining that he was
not credible and, hence, erred in denying him service connection for residuals of frostbite or frozen
feet. The credibility of the appellant is critical in this case because the majority of evidence
presented in the appellant’s favor, including all the medical nexus opinions of record, is derived
solely from the appellant’s testimony and statements as to the asserted in-service occurrence of
frostbite. Establishing service connection generally requires medical or, in certain circumstances,
lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or
injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.
See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253
(1999). A finding of service connection, or no service connection, is a finding of fact reviewed
under the “clearly erroneous” standard in 38 U.S.C. § 7261(a)(4). See Swann v. Brown,
5 Vet.App. 229, 232 (1993). “A factual finding ‘is clearly erroneous when although there is evidence
to support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United
7
States v. United States Gypsum Co., 333 U.S. 364 (1948)). The Court may not substitute its
judgment for the factual determinations of the Board on issues of material fact merely because the
Court would have decided those issues differently in the first instance. See id.
In this case, the Board found the appellant to be “less than credible” as to his asserted inservice
“foot disability, to include frostbite,” because his statements “are inconsistent with, and not
supported by, the objective, credible evidence of record.” R. at 13. Lay evidence may serve as a
substitute for medical evidence in order to establish an in-service injury under 38 U.S.C. § 1154, as
the appellant notes (App. Br. at 20-21); section 1154(b), however, reduces the burden of presenting
evidence of incurrence or aggravation of an injury or disease in service only for veterans who have
engaged in combat with the enemy. See Stone v. Nicholson, 480 F.3d 1111, 1113 (Fed. Cir. 2007)
(“The plain language of [38 U.S.C. § 1154(b)] demonstrates that in order for a veteran to be able to
show service-connection for an injury using only lay evidence, the veteran must have engaged in
combat with the enemy. . . . [A] veteran’s participation in combat is a prerequisite for the application
of § 1154(b).”) Here, the Board found the appellant not to have served in combat (R. at 4, 12), and
the appellant does not dispute that factual finding. Accordingly, the relaxed standard of section
1154(b) has no application in this case.
The Court concludes that, contrary to the appellant’s contentions, the Board properly applied
the applicable caselaw. In its role as factfinder, the Board must first “determin[e] whether lay
evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.”
Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006); see also Miller v. Derwinski,
3 Vet.App. 201, 204 (1992). In certain situations, lay evidence may be used to diagnose a veteran’s
medical condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (holding that lay
evidence may be used to diagnose a condition when “(1) a layperson is competent to identify the
medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay
testimony describing symptoms at the time supports a later diagnosis by a medical professional”);
Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (stating that “[l]ay testimony is competent . . . to
establish the presence of observable symptomatology and ‘may provide sufficient support for a claim
of service connection'” (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994))); Washington v.
8
Nicholson, 21 Vet.App. 191, 195 (2007) (holding that, “[a]s a layperson, an appellant is competent
to provide information regarding visible, or otherwise observable, symptoms of disability”).
Further, lay evidence may be competent to show continuity of symptomatology under
38 C.F.R. § 3.303(b). See Davidson, 581 F.3d at 1315-16 (rejecting the view that “competent
medical evidence is required . . . [when] the determinative issue involves either medical etiology or
a medical diagnosis”) (citing Jandreau, 492 F.3d at 1376-77); Savage v. Gober, 10 Vet.App. 488,
497 (1997). When considering lay evidence, the Board should determine whether the veteran’s
disability is the type of disability for which lay evidence is competent. See Jandreau, 492 F.3d at

If the disability is of the type for which lay evidence is competent, the Board must weigh that
evidence against the other evidence of record in making its determination regarding the existence
of a service connection. See Buchanan, 451 F.3d at1334-37.
In regard to the appellant’s credibility, the Board discussed the applicable law, stating that
it must assess the competence and credibility of the appellant and noting that the appellant “is
competent to give evidence about what he experienced; for example, he is competent to report that
he experiences certain symptoms, such as pain in his feet” but that “the [c]ompetency of evidence
. . . must be distinguished from weight and credibility, which are factual determinations going to the
probative value of the evidence.” R. at 13. The Board next discussed its reasons for finding the
appellant to be “less than credible.” Id. As noted above, the Board found that the appellant’s
“statements regarding the presence of a chronic residual bilateral foot disability, to include frostbite,
in service and thereafter to be less than credible as they are inconsistent with, and not supported by,
the objective, credible evidence of record.” Id. In support of its determination, the Board made the
following factual determinations:
In this regard, the Board notes that the record appears to contain all available service
treatment records, which do not reflect any complaints or findings of problems
regarding the veteran’s feet during his active duty service. The Board also notes that
the veteran, during the September 1998 VA cold injury examination reported that he
has not received any treatment for his feet since the initial injury. See also Report of
Cold examination, dated in April 2003 (noting that the veteran reported no particular
treatment since his initial emergency treatment). The Board finds that the total lack
of any reference in the military records to the veteran having had a cold injury to his
feet, weighs heavily against the veteran’s claim and the credibility of related
statements made by the veteran.
9
Id.
The appellant argues that the Board erred in declaring him to be not credible “because of a
lack of contemporaneous corroborating evidence.” App. Br. at 16-17 (citing Buchanan and
Jandreau, both supra). Contrary to the appellant’s argument, the Board’s findings in this case
regarding the appellant’s credibility are consistent with the principles of law espoused in Buchanon
and Jandreau, both supra. The Board is specifically charged with weighing lay evidence against the
other evidence of record in making its determination regarding service connection. See Buchanan,
451 F.3d at 1334-37. Regarding this weighing of evidence, the U.S. Court of Appeals for the
Federal Circuit has instructed: “Nor do we hold that the Board cannot weigh the absence of
contemporaneous medical evidence against the lay evidence of record . . . . [H]owever, the Board
cannot determine that lay evidence lacks credibility merely because it is unaccompanied by
contemporaneous medical evidence.” Id. at 1337.
In this case, the Board did not rely on an absence of contemporaneous medical evidence or
require such evidence as a prerequisite to determining the credibility of the lay evidence. In fact, the
Board pointed out that the appellant, at separation from service, expressly stated that he was in good
health except for problems with his knee, and no issues regarding his feet were noted on either his
portion of reporting or the examiner’s portion of the separation report. Specifically, during his July
1956 separation examination, the examiner determined that Mr. Likins’s feet and lower extremities
were “normal.” R. at 814-15 (examining facility is listed as the U.S. Army Hospital in Munchweiler,
Germany). On the Report of Medical History that was filled out by Mr. Likins in July 1956,
Mr. Likins stated: “I have been in good health since entry into service with the exception of my right
knee which has given me some trouble.” R. at 812. Further down on the same form, Mr. Likins also
checked “No” when asked whether he had ever had or is now having foot trouble. Id.; R. at 816
(September 1956 examination report prepared at the time of his transfer from Germany to the United
States). In September 1956, on a form from the Fort Dix Transfer Station in New Jersey, Mr. Likins
stated that, to the best of his knowledge, there had been no change in his physical condition since
his final physical examination taken in July 1956. R. at 826.
10
As a factual matter, the Board essentially found the appellant’s current statement and
testimony regarding frostbite to his feet to be inconsistent with his SMRs. Significantly, the
appellant made an affirmative statement on his separation examination report that he was in good
health except for his right knee: “I have been in good heath since entry into service with the
exception of my right knee which has given me some trouble.” R. at 812. Significantly contributing
to the credibility assessment made by the Board, the 1976 statement upon separation of good health
except for the knee is directly contrary to the appellant’s current statement that he had trouble with
his feet in service in 1976. Finding the lack of credibility based on a prior inconsistent statement
does not require medical expertise. Without credible evidence of an in-service incurrence or
aggravation of a disease or injury, the Board may deny service connection.
The Board also noted the contemporaneous medical evidence, including the SMRs from
1955-1956, which showed the veteran presented with physical maladies in service (right knee) and,
at such times, did not complain of any problems with his feet. See, e.g., R. at 823 (July 1956 blood
work); 825 (July 1956 chest x-ray report ). The July 1956 SMRs are dated within 6 months of the
appellant’s asserted in-service incident of frostbite to his feet. The Board considered the appellant’s
statements and weighed them against the contemporaneous evidence, including the contemporaneous
SMRs, and found the latter to be more probative. The Board specifically stated: “The Board finds
that the total lack of any reference in the military records to the veteran having had a cold injury to
his feet, weighs heavily against the veteran’s claim and the credibility of related statements made by
the veteran. . . . The Board notes that all of the veteran’s statements regarding cold weather exposure
and subsequent injury to his feet have been made in connection with his claim for VA compensation
benefits.” R. at 13-14. The Board’s analysis was not in error.
Furthermore, the Court concludes that any error by the Board in “making no findings under
the second and third prongs of Jandreau” (App. Reply at 3) is not prejudicial to the appellant. The
Federal Circuit in Jandreau, as noted above, held that lay evidence may be used to diagnose a
condition when “(1) a layperson is competent to identify the medical condition, (2) the layperson is
reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the
time supports a later diagnosis by a medical professional.” As the Secretary correctly notes
(Secretary’s Br. at 14), the second and third prongs discussed in Jandreau do not relate to credibility
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but to competency. The Board found that although the appellant was competent to give testimony
regarding what symptoms he experienced in service with respect to his feet (i.e., the presence of a
foot disability in service), the Board found the appellant to be less than credible because his current
testimony and statements were inconsistent with, and not supported by, the objective, credible
evidence of record. R. at 13. Even assuming that the Board erred in not concluding that the
appellant’s statements and testimony are competent evidence to diagnose frostbite in service, the
error is nonprejudicial because the Board found that the appellant was not credible because there was
a lack of SMRs referring to the asserted frostbite incident in service, when there are SMRs showing
other physical problems (i.e., right knee) occurring in service.
The Board’s finding of the appellant’s statement to be “less than credible” was further based
on the lapse of time between the asserted in-service incident of frostbite and the date when he first
sought treatment for his foot condition. R. at 13. The Board stated: “The Board also notes that the
veteran, during the September 1998 VA cold injury examination, reported that he has not received
any treatment for his feet since the initial injury.” R. at 13 (citing also to April 2003 VA medical
examination report (R. at 473-74)). As to the lapse of time, the Board more precisely noted:
After service, the record indicates that the first complaint or treatment regarding the
veteran’s feet was a VA outpatient treatment report, dated in June 1997, which noted
complaints of bilateral foot pain of 4-6 years’ duration. . . . The veteran was
examined by VA in July 1997. He complained of foot pain of 2 years’ duration. . . .
In this regard, the Board notes that evidence of a prolonged period without medical
complaint, and the amount of time that elapsed since military service, can be
considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333
(Fed. Cir. 2000). Here, at the earliest, at least 35 years has elapsed since the veteran
was discharged from active service before the first pertinent medical complaint.
R. at 12. It was not error for the Board to consider the passage of time as a factor in its analysis.
Indeed, a prolonged period without medical complaint after service can be considered along with
other factors in deciding a service-connection claim. See Buchanan, 451 F.3d at 1337 (noting that
it is not error to weigh the absence of contemporaneous medical evidence against the lay evidence
of record); Maxson, 230 F.3d at 1333 (holding that Board may consider “evidence of a prolonged
period without medical complaint . . ., along with other factors”). This was not the only factor
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considered by the Board, as the Board also considered, inter alia, the lack of complaints or any
reference to the incident of frostbite or frozen feet at discharge.
In sum, the Court concludes that the Board’s decision does not run afoul of Buchanan and
Jandreau. Contrary to the appellant’s assertion, the Board did not rely solely on the absence of
medical records to support its conclusion; rather, the Board relied on the lack of notation in the
SMRs of any problems with the appellant’s feet, where the SMRs recorded the appellant’s other
injury or abnormality to the right knee. The Board also relied on the contradiction between the
appellant’s current contentions that he had a foot problem in service relating to frostbite, and the
inconsistent July 1976 separation statement from the appellant asserting that he has been in “good
health since entry into service with the exception of my right knee which has given me some trouble”
and his indication by a checkmark that he had no “foot trouble” (R. at 812). Finally, the Board also
pointed to the appellant’s possible bias in statements made while seeking compensation. R. at 13.
Because the Board did not rest its credibility determination on a lack of medical evidence alone, but
rather on contradiction, lapse of time between service and first treatment of asserted condition, and
bias, the Board’s credibility analysis complied with the relevant law and the Board provided an
adequate statement of reasons or bases for this determination.
The appellant also argues that there is “substantial evidence” that all of his SMRs are not in
the claims file because they were destroyed by the 1973 fire at the NPRC and, therefore, the Board
has a heightened duty to consider his lay testimony. App. Br. at 12, 18-20. The appellant notes that
the Board conceded that his SMRs showed signs of damage caused by the 1973 fire at the NPRC.
App. Br. at 18 (citing R. at 7). The Court notes that, although the Board found signs of damage, the
Board ultimately found that because the SMRs contained the entrance and separation examinations
along with intervening medical records, including treatment records from the appellant’s time in
Germany, there was no basis or evidence to conclude that all available SMRs were not obtained from
NPRC. R. at 7; see R. at 802-42.
The appellant also contends that there are “absolutely no treatment or clinical records for the
years 1955 and 1956.” R. at 18. There are indeed service treatment records from that time, but they
fail to indicate that Mr. Likins was treated for a cold injury during that time period. See R. at 823,
824, 825, 826, 830, 831-32. Mr. Likins further alleges that the record contains no medical records
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of treatment between his entrance examination and his separation examination and that there are no
records of treatment from Germany other than from a dental facility. App. Br. at 19. A review of
the record shows such an assertion to be inaccurate as there are SMRs from U.S. Army Hospital in
Muenchweiler, Germany. See R. at 825, 830, 831-32. Accordingly, the appellant’s argument must
fail.
In a similar vein, the appellant maintains that there is no certification from NPRC that
indicated that his records are complete. App. Br. at 19-20. The Board noted that a July 1997
response from the NPRC indicated that all available service records had been forwarded to VA.
R. at 7; see R. at 802. According to the response from the NPRC, the service records included Mr.
Likins’s entrance and separation examination, clinical records, dental records, and medical records.
R. at 802. The Court notes that there is no notation on any of the documents from NPRC that
indicates that the appellant’s case is a fire-related case or that it is missing SMRs due to the fire.
The appellant next asserts that, according to the December 1998 examiner, relevant parts of
his service records had been lost in a fire. App. Br. at 19. The December 1998 statement from the
examiners stated:
[Mr. Likins] reports while in Germany he suffered frostbite to left foot with peeling
of the skin. He was treated in a field hospital at that time but these records were lost
in a fire at St. Louis. (The available records do not appear to be complete and have
water marks on them consistent with this[.]). After being treated in the field
hospital[,] his symptoms resolved. At the time of his discharge physical 7/10/56 he
indicated at that time that he did not have any problem with his feet. He does not
recall the specific time when he filled out that form however, there are greater than
100 questions to answer and it is not unreasonable to believe that he did not check
that problem because it was not bothering him at that time. However, over the years
this has become a serious medical problem for which he suffers on a daily basis.
Therefore, I believe that Mr. Likins suffered cold injury during service in Germany
1955-1956 and has residual symptoms of cold injury due to his military service. The
patient’s C-file was examined in detail along with the inservice records that were
available.
R. at 669-70 (emphasis added). The 1998 examiner did not state on what he based his conclusion
that the available records appeared incomplete. This statement appears to merely reflect Mr. Likins’s
reported statements that he was treated in a field hospital. R. at 669.
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The Court finds unpersuasive the appellant’s argument that the Board has a heightened duty
to explain why it rejected his favorable testimony because, he asserts, his records have been
destroyed. App. Br. at 20. The Board never found that the records had been destroyed, instead
finding that the SMRs show signs of fire damage, and further finding that his official forms did not
indicate that any documents were unavailable due to a fire at the NPRC. R. at 7, 11; see R. at 38-40,
449-51, 546-51, 802-803. The Board’s findings are supported in the record.
Finally, the appellant argues that the Board failed to provide an adequate statement of reasons
or bases for rejecting favorable, uncontroverted medical nexus opinions finding the appellant’s
bilateral foot disorder to be the result of cold weather injury incurred while on active duty and
improperly substituted its judgment in place of those opinions. App. Br. at 20-24. In its decision,
the Board acknowledged that the claims file contained medical opinions stating that it is as likely
as not that the appellant has residuals of cold injury of the feet in service. R. at 14; R. at 474, 556,
558, 669-70, 681, 750, 761. The Board, however, found that the favorable nexus opinions “lack
probative value” because they were based on facts provided by the appellant of an in-service cold
injury that is “wholly uncorroborated by the record, to include contemporaneous service treatment
records” and because the Board found the appellant’s statements regarding the in-service cold injury
“to be less than credible” based on their inconsistency with “the objective, credible evidence of
record.” R. at 13, 14 (citing Kowalski v. Nicholson, 19 Vet.App. 171 (2005), and Reonal v. Brown,
5 Vet.App. 458 (1993)). The Board was fully justified in determining whether the appellant’s lay
testimony was credible. See Buchanan, supra.
Because the appellant’s medical records and opinions are based solely on his statements,
when the Board found the appellant to be not credible, it did not err in concluding that the medical
nexus opinions based on his self-reports of the frostbite injury in service are not probative. R. at 14;
see Reonal, 5 Vet.App. at 461 (“An opinion based upon an inaccurate factual premise has no
probative value.”); see also Coburn v. Nicholson, 19 Vet.App. 427, 432-33 (2006). It is the Board’s
province to determine the credibility and weight of the evidence before it. See Washington,
19 Vet.App. at 367-68 (it is the Board’s responsibility to “assess the credibility of, and weight to be
given to,” the evidence of record). As such, the Board’s determination is not clearly erroneous that
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the evidence based on the appellant’s noncredible reports as to the occurrence of frozen feet inservice
is not probative.
Based on the foregoing, the Court concludes that the Board permissibly exercised its
obligation to determine the credibility and probative value of the lay and medical evidence of record.
See Buchanan and Jandreau, both supra. Further, the Board decision was supported by a plausible
basis upon review of the record on appeal and was supported by an adequate statement of the reasons
or bases. See Allday, 7 Vet.App. at 527; Caluza, 7 Vet.App. at 506.
III. CONCLUSION
The Court is not unsympathetic to the appellant’s arguments but, after consideration of the
appellant’s and the Secretary’s briefs, and a review of the record, the Board’s November 20, 2008,
decision is AFFIRMED.
DATED: December 12, 2011
Copies to:
Teresa M. Meagher, Esq.
VA General Counsel (027)
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