Citation Nr: 1305586 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 10-36 437A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for residuals of frostbite to the feet. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife and daughter. ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1953 to November 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in relevant part, denied the benefit sought on appeal. The Veteran, his wife, C. C., and his daughter, L. P., testified at a hearing before the undersigned Acting Veterans Law Judge in December 2012. During the hearing, the Veteran submitted additional evidence along with a waiver of initial RO consideration. A transcript of the hearing is associated with the claims folder. At the beginning of the appeal, the Veteran was represented by the Veterans of Foreign Wars (VFW). In a November 2011 VA Form 21-22, the Veteran appointed the Disabled American Veterans (DAV) as his representative, thereby revoking the earlier power of attorney. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. 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. The Veteran seeks entitlement to service connection for residuals of frostbite to the feet, which he relates to exposure to severe cold weather while serving in Germany. Notably, the Veteran's service treatment records are not available for review and appear to have been destroyed in the 1973 fire at the National Personnel Records Center. Therefore, there is a heightened obligation to assist the Veteran in the development of his case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Post-service treatment records include a November 2010 VA podiatry consultation, during which the Veteran reported a history of frostbite during his service in Germany. The assessment at that time was severe peripheral neuropathy. Prior VA treatment records reveal complaints of numbness in the feet and a noted previous medical history of peripheral neuropathy and peripheral vascular disease (PVD). The Veteran testified during his December 2012 Board hearing that he suffered from frozen feet or frostbite during his service in Germany. He stated that he was treated with warm soaks at a field hospital. He testified that his current foot pain and numbness began within one year after his separation from service and has continued off and on over the years. He indicated that though he suffered foot pain prior to seeking VA treatment in 2000, he basically ignored the pain. The Veteran's wife testified that he has had foot pain since they were married in 1957. The Veteran is competent to report his symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 37 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board accepts the Veteran's testimony and that of his witnesses as to his in-service injuries and treatment, and the continuity of his symptoms from shortly after discharge to the present. VA examination is therefore required to determine the nature, extent, and etiology of his claimed condition. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, there are outstanding relevant VA treatment records. In this regard, the Board observes that the Veteran reported that he began receiving treatment for his feet from the Memphis VAMC in approximately the year 2000. VA treatment records dated prior to February 2010, however, have not been associated with the claims file. Under the law, VA must obtain these records. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). 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. Obtain VA treatment records from the Memphis VAMC dated prior to February 2010 and since January 2012 and associate them with the claims file. All attempts to procure records should be documented in the file. If no such records are available, specific confirmation of that fact should be noted in the claims folder, and the Veteran should be so informed. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of any current bilateral foot disability. The claims folder, to include all newly obtained evidence and a copy of this remand, must be made available to the examiner for review. A notation to the effect that this review has taken place should be made in the examination report. All indicated tests and studies should be performed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed bilateral foot disability, to include peripheral neuropathy and PVD, had its clinical onset during the Veteran's active service or is related to any in-service disease, event, or injury. The examiner is to accept as fact that the Veteran was exposed to cold temperatures for extended periods of time while stationed in Germany, and has had pain in his feet since shortly after discharge. If in-service cold exposure did not cause any current foot disabilities, provide an opinion as to the most likely cause of any current foot disabilities. A full and complete rationale for all opinions expressed must be provided. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The agency of original jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 3. Thereafter, readjudicate the Veteran's service connection claim on appeal. If his claim remains denied, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. 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). _________________________________________________ REBECCA N. POULSON 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. See 38 C.F.R. § 20.1100(b) (2012).