Citation Nr: 1625289 Decision Date: 06/23/16 Archive Date: 07/11/16 DOCKET NO. 13-10 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right hand cold injury. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to a compensable evaluation prior to June 30, 2011, and an evaluation in excess of 10 percent since June 30, 2011, for a right foot cold injury. 4. Entitlement to a total disability evaluation based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Veteran represented by: Cynthia Holman, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2011 and May 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In the March 2011 rating decision, the RO granted service connection for a right foot cold injury and assigned a noncompensable evaluation, effective June 25, 2010; denied service connection for a right hand cold injury; and denied service connection for right ear hearing loss. The Veteran appeals for a higher initial evaluation for a right foot cold injury, service connection for a right hand cold injury and service connection for right ear hearing loss. During the pendency of the appeal, the RO issued a September 2013 rating decision granting a higher 10 percent evaluation for a right foot cold injury, effective June 30, 2011. The Veteran continues to appeal for a higher evaluation for a right foot cold injury. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). In the May 2014 rating decision, the RO denied a TDIU. The Veteran appeals the denial. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2015 Travel Board hearing. A transcript of this hearing is of record. In April 2016, the above identified attorney filed a notice of her intent to withdraw from representing the Veteran. She stated that to the best of her knowledge, the appeal had not been certified to the Board. That is patently incorrect, since she participated in the hearing on appeal in November 2015, and should have known the Board has jurisdiction. After a case is certified to the Board, withdrawal of a representative is granted where there is good cause. The above attorney provided no reason whatsoever for her request to withdraw, so good cause is not shown. Therefore, she remains identified as the attorney of record in this appeal, and the Board denies her motion to withdraw. The issues of entitlement to service connection for a left foot cold injury and entitlement to service connection for a left hand cold injury have been raised by the record at his November 2015 Board hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement to service connection for right ear hearing loss, entitlement to a compensable evaluation prior to June 30, 2011, and an evaluation in excess of 10 percent since June 30, 2011, for a right foot cold injury, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence shows that the Veteran's currently diagnosed right hand peripheral neuropathy is etiologically related to his in-service cold exposure. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a right hand cold injury have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Given the Board's favorable decision in granting service connection for a right hand cold injury, the Board finds that all notification and development actions needed to fairly adjudicate the appeal have been accomplished. Service Connection The Veteran contends that his current symptoms of right hand pain, numbness, cold sensitivity, and sweating developed as a result of his exposure to the cold during his active duty service. In addition, he argues that the same cold exposure that caused his service-connected right foot cold injury resulted in his right hand cold injury. See March 2012 and April 2014 statements and November 2015 Board hearing transcript. In particular, the Veteran testified that while serving in Fort Sill, Oklahoma and Bad Kissingen, Germany, he was exposed to the cold when he was "out in formation for an extended amount of time, and that [is] when [he] got [his] right side just completely bashed. [He] was taken off duty for two or three days." Moreover, he explained that he served on guard duty which also exposed him to cold weather. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service treatment records (STRs) document that the Veteran sought treatment in January 1971 for complaints of persistent numbness in his hands. The examiner wrote to test for Raynaud's. The existence or result of any such test is not among the STRs. Subsequent STRs do not show further treatment for right hand problems. However, October 1971 and November 1971 STRs reflect that the Veteran sought treatment for right foot problems related to cold exposure, where he was diagnosed with moderate right foot frost bite. The STRs also document that the Veteran had pain in his right foot when the weather was cold, that he requested a profile against guard duty, and that the disposition was a warning to his first sergeant against unsupervised cold weather duty. Upon separation, the Veteran had normal upper extremities clinical evaluation results. See March 1972 separation examination. An October 2010 VA Neurology Consult Note documents the Veteran's complaint of numbness and aching located in the right arm extending from all of the fingers to the distal deltoid, especially on exposure to cold. Shooting pain was denied. The Veteran reported that the onset of symptoms had occurred 20 to 25 years earlier when he was "frostbitten" twice in his right arm and leg a few years prior to the onset of symptoms. Noting that medical documentation of those incidents were not available, the VA neurologist opined that "these episodes may have represented non-freezing cold injuries." Based on the current examination, the VA neurologist found that the Veteran had hypersensitivity and decreased sensation in the right arm. Additionally, his complaints of neuropathy symptoms, sensory loss, and hypersensitivity were found to be very consistent with his reports of the non-freezing cold injuries. The VA neurologist concluded that the symptoms also did not suggest cervical radiculopathy, carpal tunnel syndrome or stroke. At a February 2011 VA examination, the Veteran reported his in-service cold exposure and current right hand symptoms. Following an objective evaluation, the examiner diagnosed the Veteran with right hand peripheral neuropathy etiology unspecified. Finding no evidence of cold injury residuals of the right hand in his STRs, including a normal separation examination, no documented history of post-service medical care for a right hand cold injury, and a long history of employment in physically demanding jobs, the examiner opined that the right hand cold injury was less likely as not caused by or a result of service. In addition, the examiner discounted the findings of the VA neurologist in October 2010, because the neurologist did not have the benefit of service medical records. The examiner also noted that the STRs had minimal to non-existent documentation of a right hand in-service cold injury. The Veteran underwent another VA examination in September 2013, however, the findings related to the Veteran's right hand did not significantly change from his February 2011 VA examination. In addition, no medical opinion was provided. Thus, this examination does not impact the Veteran's service connection claim. As an initial matter, the evidence demonstrates that during his active duty service, the Veteran was exposed to cold weather sufficient to cause injury as shown by his documented right foot cold injury. The evidence also demonstrates that the Veteran had been currently diagnosed with right hand peripheral neuropathy. The question is whether his current right hand peripheral neuropathy can be medically linked to his in-service cold exposure. The Board finds that the evidence is at least in equipoise that service connection for a right hand cold injury is warranted. The record includes conflicting medical opinions as to whether the Veteran's right hand peripheral neuropathy was caused by his in-service cold exposure. With regard to the medical opinions obtained, as with all types of evidence, it is the Board's responsibility to weigh the conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board may favor the opinion of one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Stated another way, the Board decides, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). In this case, the Board finds that the October 2010 VA neurologist's opinion and February 2011 VA examiner's opinion both agree that the Veteran was exposed to the cold during his active duty service. The dispute arises from the extent to which the Veteran's current right hand symptoms are the residuals of such in-service cold exposure. The February 2011 VA examiner suggested that the October 2010 opinion should be less persuasive, because it was not based on a review of the Veteran's STRs. However, the February 2011 VA examiner also admitted that his review of those STRs found that they lacked sufficient documentation of a right hand cold injury. Nevertheless, the VA neurologist found that the Veteran's right hand symptomatology was consistent with his reported in-service cold injury. It is not unreasonable to assume that, having already found the Veteran's report to be credible in light of the objective findings, the VA neurologist's opinion would have remain unchanged even if he had been able to review the STRs. Furthermore, the VA neurologist, using his expertise, excluded other possible causes for the Veteran's right hand peripheral neuropathy; whereas, the February 2011 VA examiner explicitly stated that he could not specify the etiology. Indeed, the VA examiner only suggested that his long history of physically demanding jobs might be an explanation. Overall, the Board finds that the October 2010 VA neurologist's opinion, which was based on his medical expertise, objective findings and detailed conclusions to be more probative, and thus more persuasive, as to the etiology of the Veteran's right hand cold injury. Therefore, the Board finds that resolving all reasonable doubt in favor of the Veteran, the Veteran's right hand peripheral neuropathy is etiologically related to his in-service cold exposure, and service connection must be granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a right hand cold injury is granted. REMAND The Veteran is seeking a higher evaluation for his service-connected right foot cold injury, service connection for right ear hearing loss, and a TDIU. Unfortunately, a remand is required in this case for the issues remaining on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The Veteran argues that his February 2011 and September 2013 VA examiners did not adequately assess the severity of his right foot cold injury as they each failed to address the Veteran's reported symptoms. Specifically, the Veteran asserts that, in addition to his complaints of right foot pain and numbness, the examiners ignored his other right foot symptoms, including sweating, peeling skin, cold sensitivity, nail abnormalities, and color changes, which would have afforded him a higher evaluation. See April 2013, November 2013 and April 2014 statements. Moreover, at the February 2011 VA examination, the examiner noted that the Veteran's right foot had thick, scaly, and drier than normal skin with cracks or fissures. On his nails, fungus, identified as onychomycosis, and thickening was noted. Based on a finding that these symptoms were also found on the Veteran's left foot, the examiner concluded that the right foot onychomycosis, thickening of foot skin, and fungal infection were not due to or a result of cold injury. This conclusion is problematic as the Veteran now asserts that his left foot symptoms developed as a result of an in-service cold injury. As a result, the Board finds that the February 2011 VA examination cannot be relied upon to adequately represent the Veteran's right foot symptomatology as it based on a factual premise that is currently being disputed. At the September 2013 VA examination, the VA examiner identified right foot arthralgia or other pain and color changes. Despite the Veteran's lay statements reporting additional symptoms, no other right foot symptoms were recorded. The Veteran had provided photographs of his right foot in March 2012, but no medical analysis or discussion of what they showed was provided. Furthermore, the Board finds that the Veteran's medical records demonstrate that the Veteran's right foot symptomatology had worsened since his last VA examination. November 2013 and March 2014 VA primary care notes describe multiple incidents of the Veteran falling due to his peripheral neuropathy. Decreased muscle strength was also noted. Finally, at his November 2015 Board hearing, the Veteran testified that due to his history of falling, he had been provided a right foot brace to keep his foot in a flexed or firm position. He described having a right foot drop, which the VLJ explained was a condition, if confirmed as part of the service-connected disability, would afford the Veteran a higher evaluation. He was also informed there was no medical evidence currently indicating foot drop was part of the service-connected disability. He stated VA had referred him to a private facility for physical therapy, and such an opinion was given to him there. He was informed those records were not currently in his file, and given an opportunity to submit them, but none of those records have been received. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of her service-connected disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also 38 C.F.R. § 3.326(a) (2015). As the evidence suggests that the Veteran's right foot cold injury may have worsened since his last VA examination, a remand is required to determine the current severity of his service-connected disability. Moreover, the examiner must address the Veteran's lay assertions regarding his current right foot symptoms, including right foot drop, excessive sweating, discoloration and nail abnormalities. With regard to the Veteran's service connection claim for right ear hearing loss, the Board finds that the February 2011 VA audiological examination is inadequate. The Veteran contends that his in-service noise exposure from his duties driving a howitzer with the repeated firing of the gun by his right ear caused him to develop right ear hearing loss. Military personnel records appear to corroborate the Veteran's description of his duties as they reflect his principal duty as cannoneer in 1971. Nevertheless, the VA examiner relied, in part, on the Veteran's lack of combat exposure and normal hearing at separation to conclude that the Veteran's current right ear hearing loss is unrelated to service. However, the examiner failed to acknowledge that the Veteran's audiometric testing at enlistment and separation did not fully record the results at each frequency (enlistment examination is missing decibel (dB) levels at 3000 Hertz (Hz) and separation examination is missing dB levels at 500, 2000, and 4000 Hz). These missing test results make analysis of any change from enlistment to separation in the Veteran's right ear hearing acuity impossible. In addition, it makes a finding of normal hearing at separation for the right ear inappropriate. Finally, the Veteran, through his attorney, argues that the 35 dB level recorded at 6000 Hz for the left ear, which indicates hearing loss, was a transcription error, and should have been recorded for the right ear. No specific evidence was provided to support that claim, however. Besides relying on incomplete in-service audiometric test results, the VA examiner failed to address the Veteran's two in-service right ear complaints in January 1972. The Veteran complained of having a sore in the external right ear canal and pain on the right side of the head around the ear, which was diagnosed as otitis externa. No explanation for whether these in-service right ear problems could have contributed to the Veteran's current right ear problems was provided by the examiner. Rather, the examiner suggested that the Veteran's 27-year history of post-service occupational noise exposure while driving large trucks could not "be ruled out" as a cause for his right ear hearing loss. The Board finds that the February 2011 VA examiner's medical opinion is inadequate as it based on insufficient findings. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, a remand to obtain a new VA opinion is required to determine the etiology of the Veteran's current right ear hearing loss. Finally, the determinations of the increased evaluation claim for a right foot injury and service connection claim for right ear hearing loss may affect the outcome of the TDIU claim. Accordingly, the issues are inextricably intertwined, and the Veteran's TDIU claim cannot be decided until his increased evaluation claim for a right foot injury and service connection claim for right ear hearing loss have been considered. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's outstanding treatment records from the Salisbury VA Medical Center from July 2014 to the present. 2. Ask the Veteran to complete a release authorizing VA to obtain his medical records from the private facility where he was evaluated for his foot drop. Request the records, and if they are not obtained, provide the Veteran notice of that fact and give him an opportunity to submit the records. 3. Only after obtaining the above VA and private medical records, to the extent available, then schedule the Veteran for a VA examination to determine the current severity of his service-connected right foot cold injury. The claims file, including a copy of this REMAND, should be made available to the examiner. The examiner should address and consider the Veteran's lay statements regarding his symptoms of right foot pain, numbness, tingling, sweating, cold sensitivity, nail abnormalities, skin peeling, and discoloration. The examiner should also opine as to whether the Veteran has right foot drop, and if so, whether it is related to his service-connected right foot cold injury, as opposed to a nonservice-connected disease process. All findings should be fully documented in the examination report. 4. Obtain a VA medical opinion to determine the etiology of the Veteran's right ear hearing loss. The claims file, including a copy of this REMAND, should be made available to the examiner. An examination should be arranged if the examiner deems it necessary to render the requested opinion. After a review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ear hearing loss was caused by his in-service noise exposure, or is otherwise etiologically related to service, including his January 1972 right ear complaints. For purposes of this opinion, the examiner should assume that the Veteran sustained some degree of noise exposure as a result of his duties driving a howitzer during service. In addition, the examiner should acknowledge the incomplete audiometric test results at enlistment and separation. The complete rationale for all opinions expressed must be provided. 5. Then, readjudicate the claims, including the TDIU claim. If the benefits sought on appeal remain denied, in whole or in part, the Veteran should be provided a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the 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 2014). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs