Citation Nr: 1325948 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 12-05 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for frostbite of the feet with leg and ankle pain. ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from March 1951 to March 1953. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Nashville, Tennessee has current jurisdiction. A review of the Virtual VA and Veterans Benefits Management System paperless claims processing systems does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to a non-service-connected pension has been raised by the Veteran and acknowledged by the RO in a February 2010 notice, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction, and it is referred to the AOJ for appropriate action. 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 appellant if further action is required. REMAND Additional development is necessary for this appeal in order to search for relevant unit records using the correct unit identification and dates of possible treatment and to provide the Veteran a VA examination. The Veteran served for one year in Korea. He contends that his current foot, ankle, and lower leg pain are residuals of frostbite to his feet that he incurred in cold weather in Korea. In February 2010, the RO requested the Veteran's service treatment records and records from the Army Surgeon General's Office. The only record recovered was the report of a March 1953 discharge physical examination because other service records were likely destroyed in a fire. In such cases, VA's duty to assist is heightened and includes an obligation to search for other forms of records that support the claimant's case. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). There is a heightened obligation for VA to explain findings and to carefully consider the benefit-of-the-doubt rule in cases where records are presumed to have been destroyed or missing while in custody of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Veteran was informed in April 2010 that treatment records could not be recovered. In May 2010, the RO in Cleveland requested additional search for sick/morning reports. However, the RO asked for a search of the medical unit in Kentucky that performed the discharge examination at the end of active service in 1953. Service personnel records showed that the Veteran's most significant assignment was as a heavy equipment operator in Company A, 809th Engineering Aviation Battalion. In a March 2012 substantive appeal, the Veteran reported that he arrived in Korea in January 1951 and that he worked at a quarry and lived in tents. As the service personnel records showed that his active service was from March 1951 to March 1953 and that he served for one year, the correct date for his arrival must be January 1952. In view of VA's heightened responsibility to assist the Veteran in recovering other records, a request for unit sick or morning reports for Company A, 809th Engineering Aviation Battalion from January to March 1952 is necessary. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2) (West 2002), 38 C.F.R. § 3.159(c)(4)(i) (2012). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, the March 1953 discharge physical examination and all post-service VA and private treatment records are silent for any reports by the Veteran to clinicians or diagnoses of residuals of cold weather injuries including frostbite of the feet. Service records do show that he performed outdoor construction duties during the winter months in Korea in 1952. In the past few years, the Veteran was diagnosed with degenerative changes of the feet and ankles, gout, and arthrosclerosis with claudication of the lower extremities (peripheral vascular disease). As the Veteran is competent to report on observable symptoms from cold weather exposure, his lay evidence is sufficient to meet the low threshold to suggest a relationship between cold weather exposure and his current lower extremity disorders. In view of the loss of most of the service treatment records, the Board resolves all doubt in favor of the Veteran and finds that a VA examination and opinion is necessary to decide the claim. In order to ensure that the file is complete, the Veteran should be provided an opportunity to submit additional relevant evidence and VA outpatient treatment records since April 2011 must be obtained and associated with the claims file. 38 U.S.C.A. § 5103A (a); 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611 (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. Provide the Veteran with notice and an additional opportunity to identify or submit relevant evidence of residuals of frostbite or other cold weather injury to his feet, ankles, and lower legs. Request that he report his observed symptoms in service, the circumstances of his cold weather injuries (such as the nature of his work and type of protective clothing used), and the dates, location, and nature of the treatment, if any. 2. Request all records of VA treatment since April 2011 and associate any records received with the claims file. 3. Request from the appropriate records archive any available sick call, morning reports, or other unit records from Company A, 809th Engineering Battalion in Korea from January to March 1952 pertaining to the Veteran. Use more specific dates if identified by the Veteran. If this period of time is too broad for the archive agency, select an allowable period of time during the winter months of 1952. Associate any records received with the claims file. 4. Then, schedule the Veteran for a VA examination of his feet and lower legs. Request that the examiner review the claims file and note the review in an examination report. Request that the examiner provide an opinion whether it is at least as likely as not (50 percent probably or greater) that any of the Veteran's current foot, ankle, and lower leg disorders including degenerative changes, gout, and peripheral vascular disease are residuals of frostbite of the feet or exposure to cold weather while performing outdoor work in winter months in Korea in 1952. The examiner must consider the Veteran's reports of the conditions he experienced in service, the nature of his observed symptoms at that time, and any continuity of symptoms after service. 5. Thereafter, readjudicate the claims for service connection for frostbite of the feet with ankle and leg pain. If any benefit sought is not granted to the Veteran's satisfaction, provide the Veteran and his representative with a supplemental statement of the case and afford an appropriate opportunity to respond. 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). _________________________________________________ MARJORIE A. AUER 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).