Citation Nr: 1327259 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-27 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for residuals of frostbite of the upper and lower extremities, excluding the right foot. 2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to an initial rating in excess of 10 percent for residuals of frostbite to the right foot. 4. Entitlement to an initial compensable rating for residuals of frostbite to the ears. REPRESENTATION Appellant represented by: Rebecca C. Patrick, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty from March 1952 to March 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal from March 2008, February 2011, and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The March 2008 rating decision denied service connection for residuals of frostbite to the right ear and residuals of frostbite to the toes of the right feet. In the course of this appeal, the issue has been broadened to encompass entitlement to service connection for residuals of frostbite to the ears and the right and left upper and lower extremities. In December 2009, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In May 2010, the Board remanded this case for additional development, and the case was subsequently returned to the Board for further appellate review. In February 2011, the RO granted entitlement to service connection for PTSD and assigned a 30 percent disability rating, effective July 27, 2010. In a November 2011 decision, the Board granted service connection for frostbite of the ears and the right foot and denied service connection for frostbite of the right lower extremity (other than the right foot), the left lower extremity, and bilateral upper extremities. In December 2011, the RO effectuated the granted claims of the November 2011 decision, granting service connection for residuals of frostbite of the right foot and assigning a 10 percent rating, and granting service connection for residuals of frostbite of the ears and assigning a 0 percent rating. Both of these ratings were made effective from November 7, 2007. The Veteran appealed the denial portion of the Board's November 2011 decision to the United States Court of Appeals for Veterans Claims (Court). While the case was pending at the Court, the VA Office of General Counsel and the appellant's attorney filed a Joint Motion for Remand in September 2012, requesting that the Court vacate the Board's November 2011 decision to the extent that it denied service connection for frostbite of the bilateral lower extremities (other than the right foot) and bilateral upper extremities. In a September 2012 Order, the Court granted the Joint Motion, vacating the Board's November 2011 decision with respect to the denials of service connection for frostbite of the bilateral lower extremities (other than the right foot) and bilateral upper extremities and remanding the case to the Board for compliance with directives that were specified by the Joint Motion for Remand. The case has thus been returned to the Board for further consideration. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. This evidence has been considered in the following decision, and any future adjudication of this appellant's case should take into consideration the existence of this electronic record. 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 Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The September 2012 Joint Motion for Remand states that "the parties agree that remand is warranted because the Board did not ensure compliance with the statutory duty to assist, which includes providing Appellant with a medical examination adequate for rating purposes when it is necessary to make a decision on a claim." The Joint Motion cited the pertinent duty to assist provisions and noted that, "[o]nce the Department of Veterans Affairs undertakes to provide an examination, the examination provided must be adequate regardless of whether it was required. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (citing Daves v. Nicholson, 21 Vet.App. 46, 52 (2007)[)]." The Joint Motion found that the July 2011 VA examination that was provided in this case was inadequate because the examiner's determination that "it is much less likely than yes that [the Veteran] currently suffers from chronic residuals of cold injury to the right ear and upper and lower extremities" is expressed in terms that "do[] not mirror the standard that was requested to be used as per the examination request (at least as likely as not)." Second, the Joint Motion determined that the July 2011 VA examiner did not address the May 2010 Board remand's request that he "state whether there is any evidence that the Veteran suffers from the chronic residuals of a cold injury of the right ear and upper and lower extremities." The Board notes that, in a July 2013 statement, the Veteran's attorney argues that "the Board has sufficient evidence in its possession to grant [the Veteran's] claim without taking the additional time and VA resources to remand this case for yet another examination." She observed that VA already has obtained three VA medical opinions in this case (dated in February 2008, August 2010, and July 2011), and further noted that a private medical opinion was submitted by the Veteran in February 2010. She observed that "the crux of this case is weighing the credibility and probative value of medical examinations," and argued that the probative value of the February 2010 private opinion outweighs that of the February 2008, August 2010, and July 2011 VA opinions. As noted by the Joint Motion, once the Department of Veterans Affairs undertakes to provide an examination, the examination provided must be adequate regardless of whether it was required. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (citing Daves v. Nicholson, 21 Vet.App. 46, 52 (2007)). In the case at hand, the Joint Motion found that the July 2011 VA examination report was inadequate. The Board is thus compelled to remand this claim for an examination and an opinion that adequately addresses the questions that were posed in the May 2010 remand. While this case is on remand, the RO should obtain an updated copy of the Veteran's VA medical records, and the Veteran should be given the opportunity to submit any pertinent private treatment records or to submit appropriate authorization for VA to obtain such records. Finally, the Board notes that, in March 2012, the Veteran submitted a notice of disagreement with the 30 percent disability rating that was assigned for the Veteran's PTSD in a February 2011 rating decision (notice of which was sent to the Veteran in March 2011), and the 0 percent and 10 percent ratings that were assigned for the Veteran's residuals of frostbite to the ears and right foot, respectively, in the December 2011 rating decision. The Court has held that the filing of a notice of disagreement initiates the appeal process, and that the failure of the RO to issue a statement of the case is a procedural defect requiring a remand. See Manlincon v. West, 12 Vet. App. 238 (1999). In the case at hand, the above higher initial rating claims must be remanded for the issuance of a statement of the case. 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. Issue a statement of the case addressing the appellant's claims of: (1) entitlement to an initial rating in excess of 30 percent for PTSD; (2) entitlement to an initial compensable rating for residuals of frostbite to the ears; and (3) entitlement to an initial rating in excess of 10 percent for residuals of frostbite to the right foot. The appellant should be provided the opportunity to perfect a timely Substantive Appeal (VA Form 9) with respect to these issues. The RO is free to undertake any additional development deemed necessary with respect to these issues. 2. Obtain copies of all of the Veteran's outstanding VA medical records and ensure that those copies are associated with the claims file. 3. The Veteran should be asked to sign and return release forms authorizing VA to obtain any relevant outstanding private medical records. The Veteran should also be notified that he may submit any such records himself. The notification requirements of 38 C.F.R. § 3.159(c)(1) should be followed with respect to any private medical evidence identified by the Veteran. If these records cannot be obtained and there is no affirmative evidence that they do not exist, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. All efforts to obtain these records should be recorded in the claims folder. 4. Following completion of the above, arrange for the Veteran to undergo a VA examination to determine whether the Veteran suffers from any current residuals of frostbite to the upper and lower extremities (excluding the right foot). The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current disabilities of the upper and lower extremities (excluding the right foot). The examiner should expressly diagnose or rule out residuals of frostbite to the upper and lower extremities. The examiner must identify any evidence that the Veteran suffers from the chronic residuals of a cold injury of the upper and lower extremities. As to any disability identified on examination, the VA examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or more) that any such disability was incurred or aggravated as a result of the Veteran's military service, to include as a result of in-service frostbite. (The Board notes that the Veteran's service treatment records are incomplete, but that it has been verified that the Veteran was exposed to cold weather during service, and the Veteran has been service connected for frostbite residuals of the ears and the right foot.) Any opinion expressed must be accompanied by a complete rationale. 5. After the development requested above has been completed, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. 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). _________________________________________________ WAYNE M. BRAEUER 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).