Citation Nr: 1751026 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 16-51 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for cold injuries, frostbite right upper extremity. 2. Entitlement to service connection for cold injuries, frostbite left upper extremity. 3. Entitlement to service connection for cold injuries, frostbite right lower extremity. 4. Entitlement to service connection for cold injuries, frostbite left lower extremity. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the Army from November 1955 to December 1956. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas that, in relevant part, denied entitlement to service connection for cold injuries, including frostbite to the bilateral upper and lower extremities. The Veteran timely perfected an appeal to the Board. In the Veteran's October 2016 Substantive Appeal, he requested a Travel Board hearing before a Veterans Law Judge. In October 2017, the Veteran submitted a statement withdrawing his hearing, and requesting adjudication of the issues on appeal on the merits. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, remand is necessary to adjudicate the issues on appeal. In a June 2016 statement, the Veteran reported that he received his medical care from the VA Medical Center in Houston, Texas. He further stated that the private records already associated with the claims file did not pertain to the issues on appeal. The Board notes that the Veteran's records were destroyed in the fire at the National Personnel Records Center (NPRC) in 1973. The Veteran was able to submit his DD-214, which showed his last duty assignment with Company D of the 17th Infantry Division and one year of foreign service, but no service treatment records. As a result, the Board has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist the claimant in developing a claim, and to explain its decision when the Veteran's medical records are not available. See Ussery v. Brown, 8 Vet. App. 64 (1995). The Veteran is competent to report lay-observable events, or the presence of disability or symptoms of a disability subject to lay observation. In a February 2015 statement, the Veteran reported serving two winters in the Korean DMZ with temperatures at 20 or more degrees below zero and inclement weather. The Veteran stated that he suffered frostbite/cold injuries to his hands and feet. He reportedly sought treatment from the field clinic, and was given pain medication and instructed to stand by the kerosene heaters. The Veteran stated that his symptoms continued after service and into the present day, leaving his extremities sensitive to cold temperatures. McLendon v. Nicholson, 20 Vet. App. 79 (2006), sets a low bar to afford an examination for a claimed service-connected condition. The Veteran's reports of cold exposure in-service and subsequent observable symptomatology in his extremities afford an indication that his present condition is related to service. As such, an examination must be afforded upon remand. 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). Expedited handling is requested.) 1. Obtain any outstanding VA treatment records that are not already associated with the claims file, to include VA facilities in Houston, Texas. If no records are available, the claims folder must indicate this fact and the Veteran should be notified. 2. Then, schedule the Veteran for a VA examination with an appropriate clinician to assess any residuals from cold injury/frostbite in the Veteran's bilateral lower and upper extremities. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified residuals of a cold injury/frostbite began during active service, are related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. The Veteran 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 2014). _________________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2016).