Citation Nr: 1328873 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 12-12 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for the residuals of frostbite, to include peripheral neuropathy. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1953 to August 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, in which the RO denied service connection for the residuals of frostbite. In May 2012, the Veteran sent the RO a form in which he indicated that he both wanted and did not want a hearing before a Veterans Law Judge. The Board sent the Veteran a letter to clarify his request in July 2012, and provided him 30 days to respond. He was notified that failure to reply would be taken as an indication that he did not want a hearing. As the Veteran did not respond to the Board's request for clarification, the request is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). 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 This matter must be returned to the September 2011 examiner for an addendum opinion. In the September 2011 examination report, the examiner indicated that he was unable to reach a conclusion regarding whether the Veteran's current peripheral neuropathy is related to frostbite incurred during service because he could not confirm that the appellant incurred a cold weather injury while on active duty. The Veteran has consistently informed VA that following a Jeep accident in October 1954 in the midst of a blizzard, he spent two hours in the snow trying to dig the vehicle out, and then another two or three hours sleeping inside the Jeep when his efforts proved futile. Upon waking, he had no feeling in his legs or feet, and struggled for a period of time to regain feeling in his lower extremities. The Veteran asserts that he suffered frostbite as a result of his exposure. According to an August 2010 formal finding by the RO, the Veteran's service treatment records are unavailable, having likely been destroyed in the accidental fire at the National Personnel Records Center in 1973. As those records are unavailable, the record lacks contemporaneous evidence that the Veteran suffered the cold weather injury that he claims. Nevertheless, the Board finds that the Veteran's statements in regard to his in-service injuries are credible; there is no evidence to contradict his claims. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) Based on this finding, the Board must return the claims file to the examiner who performed the September 2011 examination to determine whether the Veteran experiences residuals related to the cold weather exposure he suffered in October 1954. The examiner will be asked to opine whether the current findings are indicative of what might be found following a cold injury. 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. Return the claims file to the examiner who performed the September 2011 examination for an addendum opinion regarding the etiology of the Veteran's peripheral neuropathy. The examiner is asked to specifically make a finding as to whether any lower extremity pathology found would be consistent with cold exposure. Consideration should be given to whether skin changes would likely be present, whether cold sensitivity might be found, whether advanced arthritic changes or other indicator of cold exposure would be expected in a case of cold exposure. If there is other identifiable etiology of the lower extremity pathology found, that too should be set out. If the September 2011 examiner is no longer available, VA should determine whether a new examination is necessary, or whether a medical opinion without a new examination would address the questions presented. If a new examination is necessary, then one should be provided. The examiner should review this remand, the claims file. The addendum should indicate that this review occurred. Thereafter, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the current peripheral neuropathy of the lower extremities (and/or any other residual disability) is etiologically related to any cold weather injury from October 1954. A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide a requested opinion without resort to speculation, he should indicate why such a response would be speculative. 2. The RO should review the examination report to ensure that it is adequate and comply with the directives contained in this remand. If the report is inadequate in any manner, the RO should take immediate corrective action. 3. After completion of the above and any additional development deemed necessary, the issue on appeal must be reviewed with consideration of all applicable laws and regulations. If the claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case concerning this claim and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL D. LYON 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).