Citation Nr: 1302097 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 10-41 630 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for the residuals of cold injury to the lower extremities. REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active military service from June 1946 to June 1951 with the U.S. Marine Corp and from June 1951 to December 1967 with the U.S. Army. This appeal to the Board of Veterans' Appeals (Board) is from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the RO in October 2009 advised the Veteran that his claim for cold weather injuries had been denied in April 2006. The RO further explained that the appeal period for that rating action had expired; thus, was considered final as to the issue of service connection for cold weather injuries. The Board disagrees. In July 2006 (within 3 month after he was notified of the April 2006 decision), the Veteran indicated that he was concerned about his feet and requested a VA examination. Although not explicit, this document meets the requirements of a notice of disagreement (NOD) as to that issue. See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 20.201, 20.302(a). It was in writing. It was filed with the RO within one year of the notice of the April 2006, rating decision. It identified the issue appealed (cold weather injury) and indicated a desire (whether implied or not) to contest the result. Therefore, the Board will review this issue on a de novo basis. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). Because this claim require further development before being decided on appeal, the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (a); 38 C.F.R. § 3.159(c), (d). The Veteran states that he was stationed in Korea from 1950 to 1951 during one of the coldest winters of the conflict. He was assigned to a service maintenance squadron, the 1st Marine Brigade, which was based in Po Hang. During this winter he was treated for frostbite by a unit corpsman. He contends that he now has disabilities of the feet including hammer toes and arthritis that are a direct result of these injuries. The Veteran's lay testimony is competent concerning his firsthand knowledge of a factual matter, even absent any documentary evidence such as medical treatment records. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the Board notes that in July 2005 the RO received a response to a RO inquiry regarding service treatment records (STRs). In this response, the RO received STRs from his second period of service with U.S. Army, significantly, however, these records did not include any from his period of service from June 1946 to June 1951 with the U.S. Marine Corp. It is not clear from the record whether these STRs are available. While the RO attempted to obtain service personnel records from this period of service in May 2012, it does not appear that any additional efforts were made to obtain his STRs from his first period of service. In a case, as here, in which a claimant's service records are unavailable through no fault of his own, there is a heightened duty to assist a Veteran in developing facts pertaining to his claim. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which service treatment records are presumed destroyed includes the obligation to search for alternative records). The RO should take additional effort to obtain his STRs for this period of service. Furthermore, a VA examination was conducted in July 2006. The examiner diagnosed peripheral neuropathy of the extremities. The examiner also opined that this was not secondary to his service connected diabetes mellitus. In September 2009, a private physician noted that the Veteran had deformed toenails as well as painful feet. This physician indicated that his difficulties with his feet preceded his diagnosis of neuropathy, and it could be presumed to stem from his frostbite injury. The Veteran and his representative have requested further VA examination and opinion. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or persistent or recurrent signs and symptoms of a current disability; the record indicates the disability or signs and symptoms of the disability may be associated with his active military service; but the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McClendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McClendon, 20 Vet. App. at 83. See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (indicating that, when determining whether a VA examination and opinion are required under 38 U.S.C.A. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability (like pain, etc.), but does not require competent evidence of a nexus, only that the evidence suggests an association between the disability and service or a service-connected disability). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule a VA compensation examination of the Veteran's feet to: 1) first identify all current disabilities affecting his feet and 2) then provide a medical nexus opinion concerning the likelihood (very likely, as likely as not, or unlikely) these current disabilities are the result of the type of injuries or trauma he claims to have sustained while in service. In this regard, the examiner must consider the Veteran's lay statements regarding these alleged injuries in service, both insofar as their occurrence and the symptoms (chronic pain, etc.) he purportedly has experienced during the years since. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). To this end, the claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent medical and other history. The examiner must discuss the medical rationale for the opinion, irrespective of whether it is favorable or unfavorable to the claim, if necessary citing to specific evidence in the file to support conclusions. If at all possible, the examiner is asked and encouraged to try and provide some definitive comment on this determinative issue of causation, rather than merely stating he or she cannot provide this opinion without resorting to mere speculation. If, however, this is the examiner's only recourse (unable to provide this requested opinion without resorting to mere speculation), then he or she needs to discuss or explain why this requested opinion cannot be provided so that it is certain no additional comment is possible based on the available evidence or evidence that is obtainable. *The Veteran is hereby advised that failure to report for this scheduled examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 2. Then readjudicate this claim in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. By this remand, the Board intimates no opinion as to the final outcome warranted concerning this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).