Citation Nr: 1306780 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 06-37 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for neuropathy of the bilateral lower extremities, due to cold weather injury. 2. Entitlement to service connection for a respiratory disorder, to include pneumonia, bronchitis, and/or scarring of the lungs. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S.K.C. Boyce, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the above claims. The Board previously remanded this appeal in March 2009 and February 2011. Unfortunately, the Veteran's claims folder was mislaid after the February 2011 remand of the appeal. The claims folder was rebuilt and many of the relevant treatment records and submissions from the Veteran are of record. Under similar circumstances, the Board can rely on facts as stated in VA determinations, adjudications and memorandums under the presumption of regularity which requires that it be assumed that VA accurately recorded the facts as they then existed in the absence of clear evidence to the contrary as to hold otherwise would create a presumption that VA failed to properly discharge its official duties in a prior decision. See Marciniak v. Brown, 10 Vet. App. 198, 200 (1998). Thus, the present decision will rely on facts contained in such documents, as is necessary. Further, the Board was able to locate a copy of the March 2009 remand, previously absent from the claims folder, and will also rely on facts contained in that document in the manner described above. No prejudice can result to the Veteran from the Board's review of the remand in the first instance following the loss of the Veteran's claims folder as the claims on appeal are either fully granted or remanded for further development in this decision and remand order. 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 issue of entitlement to service connection for a respiratory disorder, to include pneumonia, bronchitis, and/or scarring of the lungs, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The Veteran's neuropathy of the bilateral lower extremities was caused by cold weather injury during military service. CONCLUSION OF LAW The criteria for entitlement to service connection for neuropathy of the bilateral lower extremities have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided by the Veterans Claims Assistance Act (VCAA), the Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). In this decision, the Board grants all benefits sought by the Veteran for neuropathy of the bilateral lower extremities as a result of cold weather injury in service. As this award constitutes a complete grant of the benefits sought on appeal, any deficiency in VA's compliance with the duty to notify and assist or the Board's March 2009 or February 2011 Remand orders are harmless error, and no further discussion of this duty is necessary. See Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009) (holding that harmless error is a case-specific determination and the Veteran carries the burden of showing prejudice). 38 C.F.R. § 20.1102. The Veteran contends that he suffered from cold weather injury as a result of sleeping in a truck outside in temperatures well below freezing during his service in Korea. Further, he claims that he now suffers from symptoms of the bilateral feet, ankles, and legs, diagnosed as neuropathy. He has stated that his symptoms began in service and continued to the present day, worsening in 2001 and in 2011. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disease diagnosed after service may be service connected when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992); see, e.g., Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). In order to establish service connection, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see generally 38 C.F.R. § 3.303(a). Alternatively, under 38 C.F.R. § 3.303(b), the second and third elements can be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The claimant must show (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. at 307. Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet. App. 488, 496 (1997). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Madden v. Grober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board's responsibility to evaluate the evidence applies to both medical evidence and competent lay evidence. Madden, 1125 F.3d at 1481; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Lay evidence may be used to diagnose or establish the etiology of the Veteran's medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Generally, the Board should determine whether the Veteran's particular disability is the type of disability for which lay evidence is competent, and, if so, weigh that evidence against the other evidence of record in making its determinations. Kahana, 24 Vet. App. at 433 n.4. With regard to medical evidence, the Board will evaluate the probative value of a medical opinion by assessing whether (1) the medical opinion is based on sufficient facts and data, (2) the medical opinion is the product of reliable principles and methods, and (3) the expert witness has applied the principles and methods reliably to the case. Nieves-Rodriguez, 22 Vet. App. at 302 (citing Fed. R. Evid. 702). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Private treatment notes show that the Veteran was diagnosed with small fiber polyneuropathy in 2006 following an electrophysiologic evaluation. In July 2011, nerve studies showed sensorimotor peripheral neuropathy with axonal and demyelinative features. The July 2011 nerve study report also shows a diagnosis of frostbite dating back to the world war. Further, in the March 2009 remand order, the Board acknowledged that the Veteran was exposed to cold temperatures in service. The Veteran has provided consistent accounts of his exposure to cold in service and resulting continuous symptomatology, and that lay testimony and competent and credible. See Goss v. Brown, 9 Vet. App. 109, 113 (1996) (explaining that the Board cannot ignore lay evidence of cold weather injury symptoms and sensations like burning sensations in the feet and itching and peeling feet); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (describing the means by which the Board may evaluate credibility). Lastly, the March 2009 remand order describes several relevant private medical statements no longer present in the record, including an April 2006 report that found that frostbite was the initial injury that caused the Veteran's neuropathy; as a result of cold weather injury in service, the Veteran ultimately developed neurological and vascular disorders. Further, the remand order also describes another statement from March 2006 relating frostbite to service and finding that it may have been the initial injury to the Veteran's peripheral nervous system. Further, the Veteran has consistently reported continuous symptoms of pain and burning since the extreme cold exposure in service and his testimony to that effect is both competent and credible. Hickson v. West, 12 Vet. App. 247, 253 (1999) (holding that lay testimony may establish continuity of symptomatology); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a layperson is competent to testify to symptoms of pain). In March 2011 and June 2011, the VA examiners found that the Veteran's neuropathy was less likely than not related to service, but acknowledged a lack of expertise and ultimately relied on evidence provided by the Veteran's private neurologist who has provided evidence in favor of relating the Veteran's neuropathy to cold injury in service in documents other than those apparently reviewed by the examiners. Therefore, these opinions are of considerably less probative value than those given by the Veteran's private physicians, as described in the March 2009 remand order. As the record shows a current disability of neuropathy of the bilateral lower extremities, a cold weather injury due to extreme cold exposure in service, and a relationship between frostbite in service and current bilateral lower extremity neuropathy, service connection is warranted. All doubt has been resolved in favor of the Veteran, with all consideration given to the Board's heightened duty to consider that rule where the Veteran's records have been lost, as they have been here. See 38 C.F.R. § 3.303; Shedden, 381 F.3d at 1167; Barr, 21 Vet. App. at 307; Savage, 10 Vet. App. at 496-497; see also 38 U.S.C.A. § 5107(b); Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); Gilbert, 1 Vet. App. 53-56; 38 C.F.R. § 3.102. ORDER Service connection for neuropathy of the bilateral lower extremities due to cold weather injury in service in granted. REMAND Unfortunately, the Veteran's specific contentions on his claim for service connection for a respiratory disorder were not addressed by the March 2011 and June 2011 VA examiners, as these theories are only addressed in the March 2009 remand order, now restored to the record. As the opinions obtained from a VA examiner prior to that remand order were already found to be inadequate, no opinion that adequately addresses the Veteran's contentions is currently of record. Consequently, on remand, the Veteran should be provided with a VA examination with a pulmonologist, as directed in the March 2009 remand order, and a responsive opinion should be obtained on any current respiratory diagnoses and any relationship that they may have to the Veteran's respiratory illness in service, reported as pneumonia, and recurrent bouts of bronchitis since that time. 38 U.S.C.A. § 5103A(d); Barr, 21 Vet. App. at 312 (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4); see also Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Furthermore, although the Veteran's records were requested twice from Dr. W.'s office on remand, the second time following verification of the proper contact information with the medical provider's office, these records are not present in the claims folder and their absence is not accounted for. Rather, it appears that the RO waited less than two weeks before proceeding with the adjudication of the Veteran's claim without inquiring into the status of those records. Therefore, additional attempts should be made to obtain those records on remand, as well as any outstanding VA treatment records relating to his respiratory symptoms. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c). 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 all of the Veteran's outstanding VA health treatment records, related to his respiratory disorders, from the West Texas VA Healthcare Center. All information which is not duplicative of evidence already received should be associated with the claims file or the Veteran's electronic claims folder. 2. Contact the Veteran and inform him that none of the records from Dr. W. that he previously submitted to VA remain in the record. Ask to submit any of those records, as well as any other relevant records that he has in his possession, or to provide the necessary identifying information and authorization to obtain not just his recent treatment records from Dr. W., but all of his relevant treatment records from Dr. W. Then, obtain the Veteran's treatment records from Dr. W. and associate them with the claims file or electronic claims folder. 3. Thereafter, schedule the Veteran for a VA examination with a pulmonologist. In light of the June 2011 examiner's note, if this is not feasible, forward the Veteran's claims folder to a pulmonologist for a medical opinion after all examination data has been obtained and recorded in an examination report for review. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests should be accomplished. The examiner is requested to provide a diagnosis of any respiratory disorder found to be present. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed respiratory disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, particularly the Veteran's hospitalization for pneumonia in service. For the purposes of providing this opinion, the Veteran's descriptions of his respiratory illness in service should be considered to be true. If any requested information cannot be provided without resort to speculation, indicate whether the inability to provide a definitive opinion is due to a need for further information, because the limits of medical knowledge have been exhausted, or for some other reason. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 4. Review the medical examination report obtained to ensure that the remand directives have been accomplished, and return the case to the examiner if all questions posed are not answered. 5. Finally, readjudicate the claim on appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. The appellant has the right to submit additional evidence and argument on the matters 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs