Citation Nr: 1803301	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-36 187	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for residuals of a cold injury of the right hand. 

2.  Entitlement to service connection for residuals of a cold injury of the left hand.

3.  Entitlement to service connection for residuals of a cold injury of the left lower extremity.

4.  Entitlement to an initial rating in excess of 10 percent for a right ankle disability. 

5.  Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss.

6.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse 


ATTORNEY FOR THE BOARD

K. Ciardiello, Associate Counsel 


INTRODUCTION

The Veteran had active service in the United States Army from December 1972 to December 1974. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2013 and December 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

The Veteran testified at a Board hearing held in October 2017.  

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 issues of entitlement to a higher initial rating for a right ankle disability and bilateral hearing loss and to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's current residuals of a cold injury of the right hand, to include neuropathy, had their onset in service. 
2.  The Veteran's current residuals of a cold injury of the left hand, to include neuropathy, had their onset in service.

3.  The Veteran's current residuals of a cold injury of the left lower extremity, to include neuropathy, had their onset in service.


CONCLUSIONS OF LAW

1.  The criteria for service connection for residuals of a cold injury of the right hand, to include neuropathy, have been met.  38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 

2.  The criteria for service connection for residuals of a cold injury of the left hand, to include neuropathy, have been met.  38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

3.  The criteria for service connection for residuals of a cold injury of the left lower extremity, to include neuropathy, have been met.  38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran asserts that his current cold injuries of his right hand, left hand, and left lower extremity, are related to in-service cold exposure.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Davidson v. Shinseki, 581 F.3d 1313   (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

"Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with active service in the Armed Forces; or, if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303(a); see Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that, in the context of service-connected disability compensation, "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty").

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.

The Veteran has competently and credibly testified that he has cold injury residuals in his right hand, left hand, and left lower extremity, in the form or burning and tenderness.  See October 2017 Hearing Transcript at 13.  In addition, the Veteran's competent and credible testimony, which was corroborated by a fellow soldier who worked with the Veteran, establishes that he was exposed to extremely cold temperatures during service while working in freezers.  See October 2017 Hearing Transcript at 9; see also July 2014 Buddy Statement.  As the first two elements of service connection have been met, the crux of this issue relies on establishing a nexus between the Veteran's current cold injury residuals, and his in-service exposure to extremely cold temperatures.  Finally, treatment records show that the Veteran has been diagnosed as having neuropathy of the right hand, left hand and left lower extremity.

The Board finds that the evidence, including the Veteran's competent and credible testimony, shows that his right hand, left hand and left lower extremity, cold injury residuals initially began during service and have been recurrent since.  Id at 14.  As the requirements for establishing service connection are met, service connection is warranted for right hand, left hand and left lower extremity, cold injury residuals.  38 C.F.R. § 3.303(a).


ORDER

Service connection for residuals of a cold injury of the right hand, to include neuropathy, is granted. 

Service connection for residuals of a cold injury of the left hand, to include neuropathy, is granted.

Service connection for residuals of a cold injury of the left lower extremity, to include neuropathy, is granted. 


REMAND

The Board finds that remand is necessary to provide the Veteran with a new VA examination, as the Veteran has testified that his service-connected right ankle condition has worsened since his last examination in February 2013.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Additionally, since Veteran's last VA examination, the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so."  Thus, in light of the Court's determination in Sharp, the Board finds that these matters must be remanded for a new VA examination and opinion addressing the issue of limitation of motion during flare-ups.  

The Board finds that remand is also required to ensure compliance with the holdings of Correia, specifying that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158 (2016).

Further, the Board notes that a December 2016 RO decision granted service connection for the Veteran's bilateral hearing loss and assigned a rating of 10 percent, effective September 22, 2016.  In November 2017, the Veteran expressed disagreement with the December 2016 RO decision.  The Board observes that the RO has not issued a statement of the case as to the issue of entitlement to an increase initial rating for bilateral hearing loss.  Under the circumstances, the Board finds it necessary to remand this issue to the RO for the issuance of a statement of the case.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

Finally, as the issue of entitlement to a TDIU has been raised by the evidence of record in this case, it is inextricably intertwined with increased rating claim for a right ankle disability, and appellate consideration of the TDIU is deferred pending resolution of the increased rating claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

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 medical records and associate them with the Veteran's claims file.

2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of and/or were contemporaneously informed the extent and severity of his right ankle disability.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

3. Provide the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and provide the Veteran an appropriate period of time to submit such evidence.

4. Schedule the Veteran for a VA examination to determine the current nature and severity of his right ankle disability.  The claims file and a copy of this REMAND must be made available to, and reviewed by, the examiner.  All indicated tests should be conducted, and all findings reported in detail.

It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion.  The examiner should also offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination.  

Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted.  

The examiner should also state whether the examination is taking place during a period of flare-up.  If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his right ankle symptoms and/or after repeated use over time.  

Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time.

5. Issue the Veteran a statement of the case as to the issue of entitlement to an increase initial rating for bilateral hearing loss, to include notification of the need to timely file a substantive appeal to perfect his appeal on this issue.

6. Then readjudicate the appeal.  If any of the benefits sought on appeal remain denied, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration.

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. §§ 5109B, 7112 (2012).





______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs