Citation Nr: 1801648 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-21 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a bilateral foot condition (claimed as cold-related injury). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Navy from July 1951 to August 1954. The Veteran had service in Korea, and was awarded the Korean Service Medal and Navy Occupation Service Medal, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans' Law Judge (VLJ) in November 2017. A transcript of that proceeding has been associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a bilateral foot condition he asserts resulted from cold injuries sustained during service in Korea. See April 2012 claim, January 2013 Notice of Disagreement, and November 2017 Hearing Transcript. Although the Veteran was afforded a VA examination in April 2014, for the following reasons another examination is necessary. The April 2014 VA examiner appears to have relied on an inaccurate factual premise in rendering his opinion. The examiner noted the Veteran reported experiencing peripheral neuropathy, ingrown toenails, and edema in both feet, but indicated that the Veteran was never diagnosed with cold injuries and had no pertinent physical findings, complications, conditions, signs, or symptoms resulting from a cold injury. VA and non-VA treatment records show that during the appeal period the Veteran received care for foot pain, poor circulation, onychomycosis, and peripheral neuropathy of the lower extremities. See October 2011 VA primary care note, October 2012 VA podiatry note, and October 2015 records from LCDV ROI Department. Moreover, the examiner also stated that the earliest foot condition noted in 1962 is not listed as a complication of frostbite per the Mayo Clinic website or HARRISON'S PRINCIPLES OF INTERNAL MEDICINE. However, a 2002 VA report submitted by the Veteran entitled COLD INJURY: DIAGNOSIS AND MANAGEMENT OF LONG TERM SEQUELAE states that late or long lasting cold injury sequelae include permanent nail bed deformity often with associated fungus infection (onychomycosis) and peripheral neuropathy. The findings of this report were not considered or referenced in the April 2014 examination report. Given that the April 2014 VA examination report appears to be inconsistent with the VA Cold Injury report and the medical evidence of record, a new examination is warranted. Further, on remand, any outstanding VA and private medical records should be associated with the claims file. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested.) 1. Take appropriate action to obtain VA treatment records not already of record relating to the Veteran's claimed disability. 2. With appropriate authorization from the Veteran, obtain and associate with the record any outstanding private treatment records identified by him as pertinent to his claim. 3. Schedule the Veteran for a VA cold injury examination of the feet. The claim folder, to include a copy of this remand, should be made available to and be reviewed by the examiner. After examination of the Veteran and review of all pertinent medical records, the examiner should provide an opinion on the following: a) Identify any diagnosed foot disability. b) State whether it is at least as likely as not (a probability of 50 percent or greater) that any diagnosed foot disability is a cold injury residual related to the Veteran's reported injury sustained during service in 1952. The examiner is advised that VA has conceded the Veteran was exposed to cold temperatures during his military service. In providing the requested opinion, the examiner's attention is directed to the October 2011 VA primary care note stating that the Veteran's peripheral neuropathy is possibly related to cold injury during service, the October 2012 VA podiatry note indicating that the Veteran's history of frostbite may have contributed to his neuropathy, and the 2002 VA report entitled COLD INJURY: DIAGNOSIS AND MANAGEMENT OF LONG TERM SEQUELAE, which can be found in the November 9, 2017 Third Party Correspondence located on VBMS. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 4. After ensuring that the requested actions are completed, the AOJ should conduct any other development actions deemed warranted and readjudicate the claim on appeal. If the benefit sought is not fully granted, the AOJ must furnish a Supplemental Statement of the Case before the claims file is returned to the Board, if otherwise in order. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).