Citation Nr: 21003783 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-46 952 DATE: January 22, 2021 REMANDED Entitlement to service connection for a claimed disability of the left lower extremity, to include neuropathy and any current disability of the left ankle, claimed as the result of in-service exposure to extreme cold, is remanded. Entitlement to service connection for a claimed disability of the right ankle, claimed as the result of in-service exposure to extreme cold, is remanded. Entitlement to service connection for a claimed disability of the bilateral upper extremities, to include neuropathy and any other disability manifested by weakness of the hands, claimed as a result of in-service exposure to extreme cold, is remanded. Entitlement to service connection for a claimed disability of the bilateral eyes is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1964 to March 1966. This case comes to the Board from a decision issued by the Agency of Original Jurisdiction (AOJ) in November 2014. In that decision, the AOJ denied service-connected compensation for several claimed disabilities, which the Veteran characterized as follows: (1) right lower extremity neuropathy; (2) left lower extremity neuropathy; (3) right upper extremity neuropathy; (4) left upper extremity neuropathy; (5) right ankle disability; (6) left ankle disability; (7) right hand condition; (8) left hand condition; (9) right hand weakness; (10) left hand weakness; and (11) bilateral eye condition. Except for his eye condition, the Veteran claimed that all of these disabilities were the result of his exposure to extreme cold during his active duty service when deployed to Korea in the winter of 1965-66. In his subsequent notice of disagreement, the Veteran appealed the denial of all of these claims, except for the claim for neuropathy of the right lower extremity. For the sake of clarity, and because the Board is generally required to adopt a broad interpretation of the Veteran's claimed disability, see Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the issues have been reorganized on the title page of this remand. For instance, because weakness in the left hand is a symptom of the Veteran's generalized claim for service connection for a left hand condition and could potentially also be a symptom of his claimed neuropathy of the left upper extremity, all three claims may be fairly characterized as a single claim for a disability of the left upper extremity. Since the Veteran has made similar claims for the right upper extremity, six claims can be consolidated into one - i.e., service connection for a claimed disability of the bilateral upper extremities, to include neuropathy and any other disability manifested by weakness of the hands. The Board remanded this case for further development in March 2018. When the Board remands an appeal, the claimant obtains a right to compliance with any remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). One reason for the March 2018 remand was that the service treatment records appeared to be incomplete. They did not include a report of medical examination at the time of his separation from active duty service. As the Board explained, the available records suggested that a separation examination took place in February 1966 because they include a form labelled “Statement of Medical Opinion on Separation” dated March 1966. That statement seems to be signed by the Veteran and includes a certification indicating, “There has been no change in my medical condition since my last medical examination 8 Feb 66 with the following exceptions:” After the pre-printed text quoted above, the Veteran indicated “n/a” – apparently to signify that there were no exceptions to the general statement that his medical condition in March 1966 was essentially the same as it had been at the time of his separation examination on February 8, 1966. The Veteran also completed a report of medical history, dated February 8, 1966. Such forms are usually completed at the time of general medical examinations, such as the examinations performed at enlistment, induction or separation. The Board instructed the AOJ to attempt to obtain complete service treatment records, including the missing examination report. In its instructions, the Board ordered that efforts to find the records, “should include new appropriate requests using the PIES system, electronic mail follow-up to the VA Liaison Office at the National Personnel Records Center (NPRC), follow-up by a military records specialist, contact with the Veteran's duty station at the time of his separation from service, and any other procedures required by the VA Adjudication Procedures Manual, M21-1, Part III, Subpart iii, Chapter 2, Section I . . . All efforts to obtain service treatment records and to search alternate sources should be documented in the Veteran’s claims file.” On remand, the AOJ obtained copies of military personnel records concerning this Veteran. But it appears that the February 1966 medical examination report is still missing. The AOJ made at least one post-remand request for service treatment records using PIES request code 050 (“Furnish Complete Medical/Dental Records and entire personnel file at NPRC”). The NPRC’s response, dated August 2018 indicates that, all available requested records were shipped to the contracted scan vendor to be added to the electronic claims file. But there is no information in the record suggesting that the AOJ made any attempt to undertake the follow-up measures required by the Board’s remand orders. Although the need for further delay is regrettable, the Board must issue a new remand to enforce compliance with its earlier instructions. See Stegall, 11 Vet. App. at 271. The AOJ complied with the Board’s instructions to arrange new examinations concerning the nature and etiology of the Veteran’s claimed disabilities of the upper and lower extremities. In September 2019, the examiner diagnosed peripheral neuropathy and wrote an opinion, in which he explained that it was unlikely that the Veteran’s neuropathy was related to exposure to extreme cold in service. Instead, the examiner continued, the Veteran’s neuropathy was probably the result of diabetes mellitus, a non-service-connected disability. In July 2020, the Veteran submitted a recent medical record from a physician in private practice. The physician’s assessment indicated the presence of diabetic polyneuropathy, but includes the following language which seems to contradict the September 2019 examiner’s opinion: “[the Veteran] has long term [diabetes mellitus] but in view of hand manifestation and worsening with low temperatures, sequela of exposure to extreme cold is suspected.” It is unclear from the note whether extreme cold is the more likely cause of the Veteran’s neuropathy and, to the extent it amounts to a medical opinion, the note is not phrased using the appropriate degree of certainty – i.e., at least as likely as not. But because a remand is needed anyway for the reasons above, the Board will request a new medical opinion to consider and address this physician’s note. The matters are REMANDED for the following action: 1. The AOJ should make reasonable efforts to obtain complete copies of the Veteran’s service treatment records, PARTICULARLY THE MISSING REPORT OF THE VETERAN’S SEPARATION MEDICAL EXAMINATION DATED ON OR ABOUT FEBRUARY 8, 1966. The AOJ is advised that an examination report dated February 8, 1966 is mentioned in a “Statement of Medical Condition on Separation” dated March 1966 and is implied by the presence of a report of medical history, also dated February 8, 1966. EFFORTS TO OBTAIN THESE RECORDS MUST CONTINUE UNTIL THEY ARE FOUND OR IT IS REASONABLY CERTAIN THAT THEY DO NOT EXIST OR THAT FURTHER EFFORTS WOULD BE FUTILE. These efforts should include new appropriate requests using the PIES system, electronic mail follow-up to the VA Liaison Office at the National Personnel Records Center (NPRC), follow-up by a military records specialist, contact with the Veteran’s duty station at the time of his separation from service, and any other procedures required by VA Adjudication Procedures Manual, M21-1, Part III, Subpart iii, Chapter 2, Section I (updated June 2, 2020). ALL REQUESTS FOR RECORDS AND ANY RESPONSES TO THOSE REQUESTS SHOULD BE DOCUMENTED IN THE VETERAN’S ELECTRONIC CLAIMS FILE. 2. Send the claims file to the physician who examined the Veteran in September 2019 and prepared an opinion concerning the likely cause of the Veteran’s peripheral neuropathy. If the September 2019 examiner is unavailable for any reason, the requested opinion should be obtained from another qualified person. If the requested opinion cannot be provided without a new examination, a new examination should be arranged. The examiner should review the claims file, particularly the medical records from the Veteran’s private health care provider received in July 2020 and provide an addendum report responding to the following question: In his September 2019 opinion, the examiner wrote that Veteran’s disability of the upper and lower extremities (peripheral neuropathy) was more likely the result of his non-service-connected diabetes mellitus than his claimed exposure to extreme cold during his deployment to Korea in the winter of 1965 and 1966. The examiner is advised that the records recently received from the Veteran’s private physician appear to acknowledge a diagnosis of diabetic polyneuropathy. Nevertheless, the physician wrote: “[the Veteran] has long term [diabetes mellitus] but in view of hand manifestation and worsening with low temperatures, sequela of exposure to extreme cold is suspected.” For the Veteran’s peripheral neuropathy, is it at least as likely as not (i.e., 50 percent probability is greater) that this disability began during his active duty service or is the result of any disease, injury, or event in service, including the Veteran’s exposure to extreme cold in Korea in the winter of 1965 and 1966? The examiner should provide a clear rationale explaining the reasons for his or her opinion. If the examiner gives a negative answer to this question, he or she should EXPLAIN HOW THAT CONCLUSION IS CONSISTENT WITH THE STATEMENT OF THE VETERAN’S PRIVATE PHYSICIAN INDICATING THAT, NOTWITHSTANDING HIS DIABETES MELLITUS, “SEQUELA OF EXPOSURE TO EXTREME COLD IS SUSPECTED.” 3. The AOJ must ensure that the requested opinion complies with these instructions. If any report is insufficient, the AOJ should return the examiner's report for any necessary corrective action. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.