Citation Nr: 18158527 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 14-08 270 DATE: December 17, 2018 ORDER Entitlement to service connection for residuals of frostbite of the left foot is granted. Entitlement to service connection for neuropathy of the left lower extremity is granted. REMANDED Entitlement to service connection for a back disability, to include cervical disc disease/herniation is remanded. Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. Residuals of frostbite of the left foot are attributable to service. 2. Neuropathy of the left lower extremity is attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of frostbite of the left foot have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for service connection for neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to December 1986. The matter was remanded by the Board in March 2018 and has been returned to the Board for further appellate review. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Residuals of frostbite of the left foot and neuropathy of the left lower extremity The Veteran filed a June 2010 claim for service connection for frostbite of the left foot and neuropathy. See June 2010 Statement in Support of Claim. She contends that her neuropathy and frostbite were caused by environmental conditions in service. Id. The first and second Shedden elements are met and not in dispute. The Veteran has diagnosed bilateral residuals of frostbite-Onychomycosis and small fiber neuropathy of the feet and legs. See May 2011 private medical evaluation by Dr. D.B.; October 2016 VA examination report; and November 2018 Dr. O.O. private nexus opinion. Further, service treatment records (STRs) note frost nip toes on the Veteran’s May 1984 report of medical history and November 1983 record of emergency care and treatment. As such, the crux of this case centers on whether the Veteran’s residuals of frostbite of the left foot and neuropathy of the left lower extremity are related to service. In a May 2011 private medical evaluation, Dr. D.B. opined that the Veteran’s diagnosed small fiber neuropathy of the legs and feet are more likely than not due to cold injury and frost bite suffered in service. In a November 2018 private medical evaluation, Dr. O.O. opined that the Veteran’s diagnosed small fiber neuropathy in the Veteran’s legs and feet are more likely than not due to the cold injury and frost bite she suffered during her military service. The Board notes the June 2013 VA examiner’s and October 2018 reviewing clinician’s opinions against the claims; however, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s residuals of frostbite of the left foot and neuropathy of the left lower extremity are related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for residuals of frostbite of the left foot is warranted and entitlement to service connection for neuropathy of the left lower extremity is warranted. Thus, the claims are granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Back disability In an October 2018 VA addendum opinion, the reviewing clinician opined that the cervical disc disease/herniation condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. However, the reviewing clinician did not provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a back disability is proximately due to or chronically aggravated (permanently worsened beyond the natural progression) by the Veteran’s service-connected residuals of frostbite of the right foot, as directed in the March 2018 Board remand. As such, remand for secondary opinion is needed. 2. Headaches In the March 2018 Board remand, the Board directed that, on remand an opinion should be obtained as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headache disorder, to include temporomandibular joint syndrome, arose during service. Alternatively, if the examiner determines the Veteran’s headaches did not occur during service, an opinion should be obtained as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headaches are causally or etiologically related to any incident of service. Thereafter, the October 2018 VA reviewing clinician opined that the Veteran’s headaches condition was a preexisting condition and because it is a preexisting condition, the Veteran’s headaches, to include temporomandibular joint dysfunction is less likely than not (less than 50% probability) directly related to in-service event(s). The Board finds October 2018 reviewing clinician’s opinion is inadequate. When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been in sound condition upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both pre-existing and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The Board acknowledges that on the March 1983 STR report of medical history noted the Veteran had a history of headaches “once in a while”; however, a March 1983 report of medical examination indicated normal neurologic findings and she was found qualified for service with no headache defect noted. Thus, as it specifically pertains to headaches, the Veteran is presumed to be in sound condition at entry. As such, remand for medical opinions is again, necessary. The matters are REMANDED for the following action: 1. Obtain relevant outstanding VA treatment records and associate them with the claims file. 2. Then, obtain medical opinions from a qualified clinician(s) for the Veteran’s claimed back condition and headaches. The entire claims file should be made available to and be reviewed by the clinician(s). If the reviewing clinician(s) determines that a physical examination is necessary, one must be scheduled. The reviewing clinician(s) should specifically respond to the following questions: Headaches (a) whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headache condition, to include temporomandibular joint syndrome, arose during service. (b) If the reviewing clinician determines the Veteran’s headaches did not occur during service, the reviewing clinician should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s headaches, to include temporomandibular joint syndrome, are causally or etiologically related to any incident of service Back condition (c) whether it is at least as likely as not (50 percent probability or greater) that any diagnosed back disability is proximately due to or chronically aggravated (permanently worsened beyond the natural progression) by the Veteran’s service connected residuals of frostbite of the right foot and/or left foot. The term “at least as likely as not” does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. (CONTINUED ON NEXT PAGE) 3. After completing the above action and any other necessary development, the claims must be readjudicated. If any claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representative. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Schick, Associate Counsel