Citation Nr: 1304444 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 12-04 421 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for numbness of the bilateral hands. 2. Entitlement to service connection for weakness of the left foot. 3. Entitlement to service connection for vertigo. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from February 1952 to January 1956. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied, in pertinent part, service connection for vertigo, service connection for bilateral hand numbness, and service connection for left foot weakness. In November 2012 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in St. Petersburg, Florida. A transcript of the hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for left foot weakness and vertigo are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDING OF FACT The Veteran's bilateral hand numbness and locally impaired sensation is already service connected as a symptom of his upper extremity cold injury residuals. CONCLUSION OF LAW There being no justiciable case or controversy, the Veteran's claim of service connection for numbness of the hands is dismissed. 38 U.S.C.A. § 7105 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). As service connection is already in effect for numbness of the hands, VA has no further notice or duty to assist obligations. Analysis The Veteran filed a claim for service connection for numbness in his hands in July 2009. On the January 2010 VA examination concerning his cold injury residuals, he complained of constant tingling pain and numbness in the fingers. In the March 2010 rating decision on appeal and/or in subsequent rating decisions, the Veteran's complaints of numbness of the fingers and locally impaired sensation have been acknowledged to be symptoms of the Veteran's cold injury residuals. The Board notes that a November 2012 statement from the Veteran's private physician noted normal nerve conduction studies and normal EMG results in the upper extremities. Inasmuch as the RO acknowledged that the Veteran's cold injury residuals includes objective findings and subjective symptoms of numbness of the hands to award an increased 20 percent rating effective June 2009 and an increased 30 percent rating effective in February 2012 under Diagnostic Code 7122, service connection for numbness of the hands has, in effect, been granted. Thus, his claim of entitlement to service connection for numbness of the hands is moot as the benefit sought on appeal (i.e. service connection for numbness of the hands) is already in effect. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (holding that when the RO listed a condition as service-connected on a rating sheet, it effectively granted service connection). Accordingly, the appeal on this issue is dismissed. ORDER The claim of entitlement to service connection for numbness of the bilateral hands is dismissed as moot. REMAND In addition to the foregoing, the Veteran seeks service connection for a weakness of the left foot and vestibular balance disorder (claimed as vertigo), including as secondary to a service-connected hearing disability. Concerning the left foot weakness, the January 2010 VA examiner did not have the Veteran's claims file for review and indicated he could not determine without speculation whether the Veteran's left foot disability was related to cold injuries. The March 2012 VA examiner did not address the question. In October and November 2012 private treatment records, the Veteran noted his cold injury in service and asked the physician to verify that his current left foot symptoms were the residuals of his frostbite in service. The physician indicated that while frostbite could be the underlying cause of the Veteran's disability, he stated he could not verify this was the case and that he would defer to other clinicians and records which may have been written many years ago. Physical examination revealed 4/5 plantar extension and 3/5 plantar flexion on the left on motor testing. The physician noted that EMG and nerve conduction studies revealed some mild evidence of peripheral neuropathy, which would be consistent with diabetes. The impression was peripheral neuropathy, possible multiple myeloma, and rule out neuropathy being associated with diabetes. As the possibility exists that the Veteran's peripheral neuropathy in the left leg, which has been noted to cause motor weakness in the left foot, is related to his cold injury, the Board concludes that a VA neurological examination is necessary to determine whether his current left foot weakness is related to his cold injury residuals. Concerning the Veteran's claim for service connection for vertigo, on VA audiology examination in July 2008 the Veteran complained of dizziness and a falling sensation when looking up, looking down, or closing his eyes; and said that he had fallen within the past week. Unfortunately, the diagnosis at that time (and on successful VA audiology examinations) was limited to audiometry test findings, but the 2008 audiologist did recommend that the Veteran be sent for an Ear, Nose, and Throat consult. This was not done; and the evidence does not otherwise address a relationship between the Veteran's claimed vertigo and his service connected audiological disabilities. See Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000) (holding that VA has an obligation to investigate all theories of entitlement). Remand for a new VA examination is therefore warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (providing that once the Secretary undertakes to provide an examination, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). 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) (2012). Expedited handling is requested.) 1. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for his left foot weakness or vertigo. After securing the necessary release, the RO/AMC should request any relevant records identified which are not duplicates of those already contained in the claims file, to specifically include the results of the Veteran's nerve conduction studies and EMG of the left leg in October or November 2012 and any additional treatment records from Dr. Spiegel. If any requested records are not obtainable, the Veteran should be notified of such. 2. After the above has been completed to the extent possible, schedule the Veteran for a VA peripheral nerves examination to determine the current nature of the Veteran's left lower extremity weakness and to obtain an opinion as to whether such is related to the Veteran's cold injury in service. The claims file must be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is more likely, less likely, or at least as likely as not (i.e., a 50 percent probability) that the Veteran's left foot weakness (diagnosed as peripheral neuropathy by a private provider) is due to the Veteran's cold injury to the lower extremities in service, versus nonservice connected disabilities such as diabetes or orthopedic disability of the left leg (left tibial plateau fracture). The examiner should provide the reasoning for the conclusions provided. 3. Schedule the Veteran for a VA examination by an ear, nose, and throat physician regarding the claim for service connection for vertigo. The claims file must be reviewed by the physician in conjunction with the examination. All indicated tests should be done, and all findings reported in detail. The physician must also record all pertinent complaints and symptoms. Following a review of the claims file and the examination results, the physician is requested to indicate whether the Veteran suffers from a diagnosed vertigo disorder and opine as to: a) Whether it more likely, less likely, or at least as likely as not (i.e., a 50 percent probability) that a claimed vertigo disorder, if found, was incurred during service, or is related to an event in service, including the Veteran's prolonged exposure to extremely cold conditions during service. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. b) If the physician determines that a vertigo disorder, if found, was not incurred in service and is not related to any event in service, then he/she is asked to opine as to whether it is more likely, less likely, or at least as likely as not (i.e., a 50 percent) that a vertigo disorder was caused by the Veteran's service-connected hearing loss and/or tinnitus disabilities. c) If the physician determines that a vertigo disorder, if found, was not caused by the Veteran's service-connected hearing loss and/or tinnitus disabilities, then he/she is asked to opine as to whether it is more likely, less likely, or at least as likely as not (i.e., a 50 percent probability) that a vertigo disorder, is aggravated (permanently worsened beyond normal progression), by the Veteran's service-connected hearing loss and/or tinnitus disabilities. If the physician finds the service connected disabilities aggravate the claimed vertigo disorder, then the examiner should attempt to quantify the degree of aggravation. A rationale for all opinions proffered must be set forth in the examination report. If an opinion cannot be rendered on a medical or scientific basis without invoking processes relating to guesswork or judgment based upon mere conjecture, physician should clearly and specifically so state in the examination report, and explain why that is so. 4. After completing the above development, and any other development deemed necessary, re-adjudicate the issues on appeal. If the benefits sought remain denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs