Citation Nr: 1007307 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-23 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for cold injuries of the hands and ear lobes. 2. Entitlement to service connection for cold injuries of the feet. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from December 1950 to October 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2007). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for residuals of cold exposure of the feet is addressed in the Remand portion of the decision below and is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT The Veteran's cold injuries of the hands and ear lobes, diagnosed as cold sensitization of the hands and earlobes, can not be reasonably disassociated from his military service. CONCLUSION OF LAW Cold injuries of the hands and ear lobes, diagnosed as cold sensitization of the hands and earlobes, was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303 (2009). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). In January 2005, the Veteran filed a claim seeking service connection for "cold injuries." Specifically, he contends that he was stationed at Hokkaido, located in northern Japan, for two winters during his military service. In his March 2006 notice of disagreement, he stated, "[t]o this day I have never felt entirely warm and can not be out in even mildly cold weather without clothing designed for extreme cold." He also reported having pain and numbness in his hands, fingers, feet and toes, and that this has been continuous since his military service. A March 2006 statement from the Veteran's spouse indicated that she married the Veteran shortly after his discharge in 1957. She also indicated that the Veteran has always needed heavy coats, gloves, etc., even when it is only mildly cold to others. An April 2006 memorandum from the RO's Center for Unit Records Research (CURR) coordinator indicated that the Veteran's service personnel records show that he was with the 620th Aircraft Control and Warning (AC&W) Squadron from October 1951 to July 1952, and with the 528th AC&W Group from July 1952 to February 1954 at APO 994, Johnson Air Force Base, Irumagawa, Japan, located outside of Tokyo. The memorandum also noted that internet research confirmed that there was a detachment of the 511th AC&W Group at Hokkaido, Japan, which was a remote radar site. According to internet research, the 528th was responsible for Northern Japan from the end of 1947 until August 1951, when it came under control of the 511th Aircraft Control and Warning Group at Misawa Air base. The CURR coordinator then indicated that there were no references in the Veteran's service personnel or medical records showing that he was either with the 511th or at Hokkaido, Japan. In October 2006, a VA examination for cold injuries was conducted. The VA examiner noted that the Veteran's claims folder was available and reviewed. The report noted the Veteran's complaints of pain and cold sensitivity in his hands and ear lobes with cold exposure, which began in 1952 to 1953. He indicated that he has treated this condition by wearing multiple pairs of socks, wearing socks to bed, staying indoors in cold weather, and visiting warmer areas. The report noted the location of the Veteran's cold injury as Japan. Specifically, it noted that he was exposed to cold weather while performing his radar duties. Physical examination of the hands and earlobes was normal. There was no tissue loss, pulses and sensation were intact, and he appeared to have very good grasps in both upper extremities. The report concluded with a diagnosis of old cold exposure (no frostbite) with current cold sensitization of the hands and earlobes, secondary to old cold exposure in Japan. The report noted that this condition results in pains in the hands and ear lobes with cold exposure. The VA examiner then opined that it was "at least as likely as not that his current complaints of cold sensitivity to the ears and hands with cold weather exposure are secondary to the cold exposure that he had throughout the winters in Japan many years ago, as his complaints nowadays are quire typical of cold sensitivity." In support of this opinion, the VA examiner noted that his post service employment as a district manager for Sears did not appear to cause these symptoms. Historically, the Veteran served in the Air Force from December 1950 to October 1954. His report of separation noted that he was awarded a Japan Occupation Medal. It also listed his inservice specialty as radar repairman. His service treatment records are silent as to any treatment of cold injuries. Based on the totality of the evidence, and with application of the benefit-of-the-doubt rule of 38 U.S.C.A. § 5107(b), the Board finds that the Veteran currently has cold injuries of the hands and ear lobes, diagnosed as cold sensitization of the hands and earlobes, which was incurred during his active military service. The record confirms the Veteran's presence in Japan for two winters during his military service, and a VA physician has attributed the Veteran's current cold sensitization of the hands and earlobes to his service in Japan. While there are some internet articles indicating that the Veteran may not have served in Hokkaido, Japan, the VA examiner's opinion is not based on this specific location within Japan. Accordingly, service connection for cold injuries of the hands and ear lobes, diagnosed as cold sensitization of the hands and earlobes, is warranted. ORDER Service connection for cold injuries of the hands and ear lobes, diagnosed as cold sensitization of the hands and earlobes, is granted. REMAND The Veteran is seeking service connection for cold injuries of the feet. After reviewing the Veteran's claims folder, the Board concludes that additional development is necessary in order to comply with VA's duty to notify and assist. See 38 U.S.C.A. §§ 5102, 5103, 5103A. In a July 2007 statement, the Veteran reported having misunderstood the questions ask by the VA examiner regarding his lower extremities. He indicated that he does have a problem with his feet. Along with this statement, the Veteran submitted a July 2007 treatment letter from M.C., M.D., which noted that the Veteran was being treated for Alzheimer's type dementia. The report also indicated that the Veteran was being treated by a neurologist, T.H, M.D. for this condition. Accordingly, the case is remanded for the following actions: 1. The RO must request that the Veteran identify all VA and non-VA medical providers who have treated him for his cold injuries of the feet, including records from his neurologist, T.H., M.D. The RO must then obtain copies of the related medical records that are not already in the claims folder. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim. The Veteran must then be given an opportunity to respond. 2. Thereafter, the RO must afford the Veteran the appropriate examination to determine whether he currently has any cold injuries of his feet, and if so, whether they are related to his military service. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination. Based upon examination of the Veteran, including a review of his narrative history, both during the examination and previously recorded in the claims, as well as a review of his claims file, the VA examiner must indicate if the Veteran currently has any cold injuries to his feet, and if so, whether any disorder identified is related to his military service. A complete rationale for any opinions expressed must be given. The report must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 6. This appeal has been advanced on the Board's docket. Expedited handling is requested. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs