Citation Nr: 1318045 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-22 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for cold injury residuals of the feet, hands and face. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to December 1955 and February 1956 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled for a Travel Board hearing in July 2011; however, pursuant to his request it was rescheduled for October 2011. The Veteran failed to appear for his rescheduled hearing in October 2011. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn. See 38 C.F.R. § 20.704 (d), (e) (2011). The Board remanded this claim in January 2012 and November 2012 for additional development including VA examinations. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in this file reveals that they are either duplicative of the evidence in the paper claims file or are not relevant to the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. 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). REMAND The Veteran contends that he is entitled to service connection for cold injury residuals to his feet, hands and face. In his correspondence he has explained that during service he was a firefighter in Alaska and that in 1954 he responded to a fire at the N.C.O. Club. The Veteran indicated that the temperature was 35 degrees below zero, and that he froze his face, hands, and feet. The Veteran indicated that he was told to shower and put lotion on his face, hands and feet. Personnel records confirm that in 1954 the Veteran was a firefighter serving in Alaska; however, there are no medical records which show any complaints, treatment, or diagnoses of cold injuries. The Veteran has explained that he continues to have trouble with his face and feet breaking out. In May 2009, the Veteran detailed his painful experience with shaving. He specifically indicated that his face turned red, and soon after, his skin peeled. He also reported that his toe nails turned black such that James Terrentine, D.O., removed them. Pursuant to January 2012 remand instructions, the Veteran was afforded a VA examination in February 2012. At this examination the claims folder was not available for review, although it was made available for a later addendum opinion. It was indicated that the Veteran had been diagnosed as having cold injuries, specifically frostbite of the face, toes, and fingers from approximately 1953 to 1955. The Veteran reported that he had been stationed in Alaska from 1953 to 1955 and that he sustained frostbite to his face, fingers and toes, but was not evaluated by the service medical clinic. The Veteran reported that he experienced residual numbness and tingling in all affected areas. He reported that his great toes developed necrosis and infection of the toenails, and had to be surgically excised. The Veteran identified experiencing cold sensitivity, numbness, and locally impaired sensation in his right and left hands. A corresponding description indicated that the Veteran experienced decreased sensation, cold sensitivity and numbness over the fingers specifically. The Veteran reported experiencing cold sensitivity, numbness, locally impaired sensation, and nail abnormalities of the right and left feet. Decreased sensation, cold sensitivity, and numbness of the toes, as well as toe-nail problems with the great toe were described. The Veteran reported experiencing right and left ear locally impaired sensation, and the external ears had impaired sensation with tingling noted. The Veteran reported experiencing pain and locally impaired sensation of his nose, with tingling and soreness. X-rays showed right hand osteoarthritis. There was no evidence of osteoarthritis, osteoporosis, or subarticular punched out lesions involving the left hand, right foot, or left foot. There were no other significant diagnostic test findings or results. The Veteran reported that he used a cane for normal locomotion, secondary to hip and lumbar arthritis. There was no functional impairment of an extremity, due to cold injuries, such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The Veteran did not have related scars. The Veteran, however, had other pertinent physical findings, complications, conditions, signs and/or symptoms resulting from cold injury. Specifically, it was indicated that the Veteran's face revealed hyperkeratosis and scarring over the external nose diffusely. His feet revealed severe onychomycosis of his great toenails bilaterally. He had 2+ palpable radial and dorsalis pedis and posterior tibial pulses bilaterally. There was no other significant skin discoloration of the hands, feet, or face. Palpation of his bilateral hands and feet revealed diffuse coldness to the touch. The Veteran's cold injury residuals did not impact his ability to work. Following examination, the examiner did not provide a direct etiology opinion, rather he provided a secondary opinion, indicating that the claimed condition was at least as likely as not proximately due to or the result of the Veteran's service-connected condition. He then reasoned that the Veteran's claims folder was not available for review at that time, but that VA outpatient records were reviewed. The Veteran was reportedly stationed in Alaska during military service from 1953 to 1954, and was therefore exposed to sub-zero temperatures. The examiner indicated that the Veteran sustained frostbite injuries to his hands, feet and face; however, the only residual findings on examination involved some disfigurement of the skin of his nose, and dystrophic toenails of his great toes. The Veteran had clinical and radiographic arthritis of his right hand and fingers, but not of his feet or left hand, and skin of his hand and feet was relatively normal. Otherwise, he had relatively severe actinic keratoses of his bilateral hands and forearms, but that was considered to be due to excessive sun exposure, and not cold exposure. Approximately a week later, the examiner provided an addendum opinion, wherein the claims folder was reviewed. He indicated that service treatment records verified that the Veteran was in Alaska from 1953 to 1955, but there was no record of treatment for frostbite to the hands, feet or face. The examiner indicated that with an essentially unremarkable clinical examination and X-rays he was amending his earlier opinion. He then opined that it "was less likely than not" that the Veteran's alleged frostbite injuries to his hands, feet and face were proximately due to or caused by military service, because there was a lack of clinical evidence of treatment and residuals for this condition. The examiner's rationale focused on a lack of clinical evidence of treatment, without explaining the effects of the Veteran's in-service cold exposure. Based on the foregoing, clarification is needed regarding the etiology of any cold injury residuals, including a discussion of the effects of in-service cold exposure on the Veteran's claimed residuals of cold injury of the feet, hands, and face. In November 2012 the claim was remanded by the Board. In making that determination the Board noted that the prior remand in January 2012 was to obtain a VA examination with a medical opinion, and the opinions obtained in the February 2012 VA examination were inadequate. The November 2012 Board Remand was to provide a clarifying opinion as to the nature and etiology of residuals of a cold injury to the feet, hands and face, claimed as due to the Veteran's in-service cold exposure. The Veteran was scheduled for a VA examination in December 2012; however, the Veteran failed to report for the examination as noted in the VAMC records. He has not requested that the examination be rescheduled. The Board reminds the Veteran that the duty to assist is not a one-way street, and that he has a duty to cooperate, to include reporting for examination and cooperating with the examiner. If an appellant wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). He is advised that he has an obligation to assist VA in the development of his claim, and that failure to do so may result in an adverse decision. 38 C.F.R. § 3.655 (2012). In light of the Veteran's assertions, the Board finds that another VA medical examination in necessary to obtain a current diagnosis as well as a medical nexus opinion. In a recent decision of the United States Court of Appeals, Federal Circuit, Khyn v. Shinseki, Nos. 2012-7003, (May 3, 2013), the Federal Circuit reversed a precedential decision of the CAVC established in Khyn v. Shinseki, 23 Vet. App. 335 (2010). The specific issue was whether the Veteran had received notice of an examination that he failed to attend. Prior to this recent decision, the VA Court applied a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." INS v. Miranda, 459 U.S. 14 (1982); United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926). This presumption had been applied "to all manner of VA processes and procedures." Woods v. Gober, 14 Vet. App. 214 (2000). Of import here, is that it has been applied to the process of notifying a Veteran of a scheduled examination. Khyn v. Shinseki, 23 Vet. App. 335 (2010). The presumption attaches when VA mails notice of a determination to a Veteran at his last known address of record. Wood, 14 Vet. App. at 214; see also Mindenhall v. Brown, 7 Vet. App. 271 (1994). In Khyn, The CAVC had allowed VA to submit an affidavit of a manager from the VAMC involved to establish the regular practice of mailing such notices. The Federal Circuit held the CAVC could not consider such evidence because judicial notice does not extend to affidavits from "a party's employees regarding otherwise unknown internal procedures." (slip op. at 7). The Federal Circuit went on in Kyhn to further hold that the CAVC had done impermissible fact-finding in the first instance. The Federal Circuit essentially drew a distinction between "instances where the presumption of regularity was premised upon independent legal authority" and instance where it was based upon "evidentiary findings." (Slip op. at 10). In the instant appeal, the file contains a notation in the VAMC records noting that the Veteran was scheduled for a December 2012 VA examination and failed to report. There is no copy of any letter which was sent to the Veteran at his current address notifying him to report for the examination. In this case the RO has made a presumption of regularity in the notification process. However, the file does not contain a copy of any correspondence to the Veteran notifying him of his examination. See Khyn v. Shinseki, Nos. 2012-7003, (May 3, 2013). Accordingly, the Veteran will be afforded another opportunity to undergo VA examination in relation to his claim on appeal. However, on remand, the Veteran should be notified that it is his responsibility to report for any scheduled examination based on notice sent to his last address of record, and to cooperate in the development of the case, as the consequences of failure to report for a VA examination in conjunction with an original compensation claim without good cause may include denial of the claim on the merits because the claim will be decided on the evidence of record. See 38 C.F.R. § 3.655. 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. The RO/AMC should assure the Veteran's current contact information including his mailing address is on file. He should be notified in writing of the VA cold injuries examination being scheduled by this Remand action. A copy of the notification letter, with the Veteran's name and current address, must be placed in the claims file. Khyn v. Shinseki, Nos. 2012-7003, (May 3, 2013). 2. The Veteran should be afforded a VA examination, with an examiner other than the one who conducted the February 2012 VA examination, for the purpose of clarifying the nature and etiology of any current cold injury residuals of the feet, hands and face. The claims file must be made available to the examiner in conjunction with the examination. The examiner should be asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has any current cold injury residuals of the feet, hands and face related to service. The examiner is asked to discuss the Veteran's credible contentions that he was exposed to sub-zero temperatures during service. A report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions should be provided. 3. After completion of the above and any other development the RO/AMC should deem necessary, the RO/AMC should review the expanded record and readjudicate the claim. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. The appellant may submit additional evidence and argument on the matter or 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 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). ____________________________________________ James L. March 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).