Citation Nr: 1334588 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 13-08 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg THE ISSUE Entitlement to service connection for disability claimed as residuals of frostbite of the feet and hands. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to May 1955. This matter comes to the Board of Veterans' Appeals (Board) from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the matter was later transferred to the St. Petersburg, Florida RO. Per his request, the Veteran was scheduled to have a hearing before a Decision Review Officer (DRO) in February 2013. However, he withdrew this request. See January 2013 communication from Veteran. 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 The Veteran has indicated that he has had treatment at numerous VA facilities. The Agency of Original Jurisdiction (AOJ) has obtained records from VA facilities in New York, Florida, Pennsylvania and Connecticut. A review of the February 2013 Statement of the Case (SOC) notes, inter alia, "electronic review" of VA treatment records from the Orlando VA Medical Center (VAMC) dated from December 8, 2009, to January 10, 2013. However, a review of the claims file, to include electronic records associated with the Virtual VA paperless claims system, fails to disclose the presence of any records from the Orlando VAMC dated after October 15, 2009. Thus, it appears that there are potentially relevant outstanding VA records. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Consequently, the Board finds that VA must attempt to obtain any VA records not currently associated with the claims file, particularly any dated from approximately October 2009 and on, and associate them with the claims file. Also, the Board notes that in July 2008 the AOJ attempted to obtain the Veteran's complete service treatment records, but received only one such record along with an indication that these records were destroyed in the July 1973 fire at the National Personnel Records Center (NPRC). Nevertheless, the Veteran's complete service treatment records were associated with the claims file thereafter. However, his personnel records do not appear to have been requested and are not associated with the claims file. When obtaining records in Federal custody, VA must make as many requests as are necessary to obtain relevant records, until VA concludes that further efforts to obtain these records are futile. 38 C.F.R. § 3.159(c)(2). Accordingly, VA must attempt to obtain any possibly outstanding service personnel records. Lastly, the Veteran should be afforded a VA examination to address the matter on appeal. The Veteran is claiming that he incurred residuals of frostbite while stationed in Korea in the 1950s. He has related that he experienced exposure to extreme cold, episodes where his feet and fingers "would get cold and turn white" and symptoms in the hands and feet ever since. An October 2009 VA note documents similar complaints, and an assessment of "[p]resumed [R]aynaud's by description." Frostbite and cold injury, and particularly symptoms thereof, are certainly capable of lay observation. See Goss v. Brown, 9 Vet. App. 109, 113 (1996); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007). These circumstances satisfy the low threshold for obtaining a VA examination as contemplated by McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, a VA examination is necessary to decide this matter. 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) (2013). Expedited handling is requested.) 1. Attempt to obtain any VA medical records not currently associated with the record, particularly any records dated after October 15, 2009, from the Orlando VAMC. Perform any and all follow-up as necessary, and document negative results. 2. Attempt to obtain personnel records associated with the Veteran's active service, to include his DD Form 214, and associate them with the claims file. Perform any and all follow-up as necessary, and document negative results. 3. After the development directed in paragraphs 1 and 2 has been completed to the extent possible, schedule the Veteran for a VA examination by an appropriate medical professional for the purpose of ascertaining the presence, nature and likely etiology of any disability claimed as frostbite residuals, to include Reynaud's disease. The claims folder should be made available to the medical professional providing the opinion for review in conjunction with rendering the opinion and the examination report should note that the claims file was reviewed. The examiner should obtain a complete, pertinent history from the Veteran. Based upon the examination and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any frostbite residuals and/or Reynaud's disease of the hands and feet, if diagnosed, is/are attributable to service, particularly his reports of frostbite and symptomatology of the hands and feet in service. Review of the entire file is required. In rendering any requested opinion, the examiner must specifically acknowledge and discuss the lay evidence reported by the Veteran. Any and all opinions must be accompanied by a discussion of the underlying reasons. 4. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claim. 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 before this case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A. C. MACKENZIE Acting 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).