Citation Nr: 1319649 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 06-28 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for cold injury residuals of the right lower extremity prior to June 5, 2010, and to a rating in excess of 20 percent thereafter. 2. Entitlement to an initial rating in excess of 10 percent for cold injury residuals of the left lower extremity prior to June 5, 2010, and to a rating in excess of 20 percent thereafter. 3. Entitlement to service connection for a right knee disability, to include as secondary to service-connected cold injury residuals of the lower extremities. 4. Entitlement to service connection for a left knee disability, to include as secondary to service-connected cold injury residuals of the lower extremities. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO in New Orleans, Louisiana, currently has jurisdiction over the Veteran's VA claims folder. The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2009. A transcript of this hearing is of record. This case was previously before the Board in September 2009 and May 2011. In September 2009, the Board remanded the case for further development. Thereafter, in May 2011, the Board denied the claims of service connection for bilateral knee disabilities and peripheral neuropathy of the bilateral lower extremities. Further, the Board noted in the Introduction that a February 2011 rating decision's grant of service connection for cold injury residuals of the right and left lower extremities represented a complete award of the benefits sought with respect to the cold injury residuals and are no longer on appeal. The Veteran appealed the Board's May 2011 decision to the United States Court of Appeals for Veterans Claims (Court). By a November 2012 memorandum decision, the Court affirmed the Board's denial of service connection for peripheral neuropathy of the lower extremities; and vacated the Board's denial of service connection for bilateral knee disabilities, as well as the Board's determination that the February 2011 rating decision's grant of service connection for cold injury residuals of the lower extremities represented a complete award of the benefits sought on appeal. These claims were remanded to the Board for compliance with the directives of the Court's memorandum decision. Although the issue perfected for appeal regarding the cold injury residuals was entitlement to service connection for such residuals of the lower extremities, the Court's memorandum decision relates to the appropriateness of the initial rating(s) assigned for these disabilities. Therefore, the Board has re-characterized the appellate issues to fully reflect the Court's memorandum decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In the November 2012 memorandum decision, the Court stated, in pertinent part, that Note (1) to Diagnostic Code 7122 for evaluation of cold injury residuals states "Separately evaluate other disabilities that have been diagnosed as the residual effect of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluated under [DC] 7122." (Emphasis added in memorandum decision). The Court also stated that in the February 2011 rating decision the RO failed to explain which symptoms were used to support an evaluation under Diagnostic Code 7122, and that this failure was compounded by the Board when it failed to explain why the RO's grant of service connection represented a "complete award of benefits sought with respect to the cold injury residuals and are no longer on appeal." The Court further stated that this finding by the Board was made on the heels of the RO decision and cut short the Veteran's time for responding to the RO decision prior to the Board's decision. Moreover, the Court stated that without any explanation from the Board, and in light of Diagnostic Code 7122 Note (1), it was therefore unclear whether the Veteran is entitled to a separate rating in addition what has already been granted. For example, the Court stated the Veteran may be entitled to a separate rating for arthritis under Diagnostic Code 5003 unless the arthritis was used on a basis to support a rating under Diagnostic Code 7122. Therefore, the Court held that remand was required for the Board to adequately address which symptoms were used to support evaluations the Veteran is currently receiving under Diagnostic Code 7122 and whether the Veteran is entitled to a separate rating for arthritis in both feet pursuant to Diagnostic Code 5003, or for any other disability that the residual effect of cold injury not currently part of the evaluation under Diagnostic Code 7122. It is well settled that "[w]here a case is addressed by an appellate court, remanded, then returned to the appellate court, the 'law of the case' doctrine operates to preclude reconsideration of identical issues." See Johnson v. Brown, 7 Vet. App. 25, 26 (1994). Moreover, the Court has specifically held that this principle applies to Court decisions on cases remanded to the Board. See Browder v. Brown, 5 Vet. App. 268 (1993). In addition, the Court has held that a corollary principle is the "Mandate Rule": "a lower court is generally bound by the terms of the mandate and has no power or authority to deviate from that mandate." Chisem v. Brown, 8 Vet. App. 374, 375 (1995) (For purposes of this analysis, this Court's position is analogous to that of a 'circuit court,' while the [Board] stands somewhat in the position of a district court.) In addition, the Court found that a June 2010 VA medical examination for the cold injury residuals claim was inadequate and not in compliance with the Board's September 2009 remand directives. The Court noted that the Board's remand directed that all indicated tests must be performed and all findings reported in detail. The Court stated that a consulting neurologist in May 2010 noted that the "[v]ascular stuies (Ultrasound and Doppler studies) [should be performed] to rule out [deep vein thrombosis.]" Although these tests were indicated, they were never performed. The Board further notes that the Court has held once VA undertakes an examination, even if not required to do so, an adequate one must be produced. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Thus, a remand is required in order to accord the Veteran an adequate examination of her cold injury residuals. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.). The Veteran's attorney has also contended, to include in a May 2013 written statement, that the case should be remanded for an adequate VA medical opinion. With respect to the claims of service connection for disabilities of the right and left knees, as indicated in the title page the Veteran has contended that these disabilities are secondary to her service-connected cold injury residuals and/or bilateral pes planus. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. The Court has held that when aggravation of a service member's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected. Allen v. Brown, 7 Vet. App. 439, 446 (1995). In the November 2012 memorandum decision, the Court found that June 2010 VA examination was also inadequate regarding these claims, in essence, because the examiner did not address the issue of secondary aggravation as required by Allen, supra. Therefore, a remand is also required to accord the Veteran an adequate VA examination regarding these claims. On remand, any outstanding treatment records regarding the Veteran's purported cold injury residuals and knee disabilities should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who have treated the Veteran for cold injury residuals of the lower extremities, and bilateral knee problems, since June 2010. After securing any necessary release, obtain those records not on file. 2. The RO should notify the Veteran that she may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature, extent and severity of her cold injury symptoms and the impact of the condition on her ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to evaluate the nature and severity of her service-connected cold injury residuals of the right and left lower extremities. The claims folder should be made available to and reviewed by the examiner. The examiner must identify all current residuals of the acknowledged in-service cold injury. In pertinent part, the examiner must specifically address whether it is at least as likely as not (50 percent or greater probability) that arthritis of the feet is a cold injury residual. All indicated tests must be performed, and all findings reported in detail. The examiner should address whether vascular studies are necessary to rule out deep vein thrombosis as indicated by the consulting neurologist noted in the Court's November 2012 memorandum decision. A complete rationale for any opinion expressed must be provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. The Veteran should also be afforded an examination to evaluate the nature and etiology of her current right and left knee disabilities. The claims folder should be made available to and reviewed by the examiner. Following evaluation of the Veteran, the examiner must express an opinion whether it is at least as likely as not that any current disability of either knee was incurred in or otherwise the result of her active service. If the examiner determines that any knee disability is not directly related to service, then he or she must express an opinion as to whether it is at least as likely as not that such disability was caused or aggravated by the service-connected cold injury residuals of the lower extremities and/or bilateral pes planus. By aggravation, the Board means a permanent increase in severity that is beyond natural progression. A complete rationale for any opinion expressed must be provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. See Jones. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then readjudicate the appeal. The RO's decision should reflect consideration of whether the Veteran is entitled to separate rating(s) pursuant to Note (1) of Diagnostic Code 7122, to include arthritis of the feet. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and her attorney should be furnished a Supplemental SOC (SSOC) which addresses all of the evidence obtained after the issuance of the last SSOC in February 2011, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to 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 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). _________________________________________________ STEVEN D. REISS 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).