Citation Nr: 21063556 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-40 774 DATE: October 14, 2021 REMANDED Entitlement to service connection for a disability of the feet (claimed as residuals of frostbite injuries) is remanded. Entitlement to service connection for scoliosis of the thoracolumbar spine (claimed as back injury) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1976 to July 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a June 2021 hearing. The Board has recharacterized and expanded the Veteran's claim for service connection for frostbite of both feet, to a general claim for entitlement to service connection for disabilities of the feet. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Entitlement to service connection for a disability of the feet. The Veteran seeks service connection for disabilities of the feet. He asserts his feet are painful, swollen, and feel like they are on pins and needles as a result of in-service frostbite. He reports being hospitalized for frostbite while in-service. A remand is warranted for further development. First, the Veteran has repeatedly reported being hospitalized in-service for frostbite for two weeks at an Army Hospital in Fort Dix, New Jersey. The claims file is negative for hospital records and for any indication that the RO made a specific request to obtain these records. Such a request is necessary, as hospital records are generally stored separately from standard service records. As a result, a remand is appropriate. Second, an examination is warranted to clarify the nature and etiology of the Veteran's claimed disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran asserts his current foot symptoms (numbness, tingling, pain, and swelling) are residuals of in-service frostbite. He testified that he had been experiencing those symptoms since the 1980s. VA treatment records document these complaints along with findings diminished pulses in the feet. Without explanation, the VA care provider appears to relate the Veteran's foot symptoms to hypertension. As the Veteran is competent to report symptoms such as numbness and pain, a remand for VA examination and opinion is required. 2. Entitlement to service connection for scoliosis of the thoracolumbar spine. The Veteran was afforded a VA examination in December 2012 wherein he was diagnosed with scoliosis. The examiner opined that the condition was less likely than not related to service. However, the examiner did not specify whether Veteran's scoliosis was a congenital or developmental disease, which first manifested in service, or a congenital or developmental defect. Such discussion is critical as, if it is a defect, the examiner was required to opine whether the condition was subject to a superimposed injury or disease during service that resulted in additional disability. Given the omission, a clarifying addendum opinion is required. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain from the NPRC or any other appropriate repository all service hospital records from Fort Dix, New Jersey for the Veteran. 2. Following the development above, schedule the Veteran for a VA examination to obtain an opinion as to the nature and etiology of the claimed disability of the feet, to include residuals of frostbite. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: a. Identify all foot disabilities during the period on appeal. Note, VA treatment records from 2011 appear to identify the Veteran's reports of foot pain, swelling, and sensation of being on pins and needles. b. Whether any foot disability, to include residuals of frostbite, had their initial onset in service or were otherwise caused by any in service event, injury, disease, or disorder, to include cold weather exposure. (*) In addressing the above, the examiner is asked to comment on whether there is any evidence tending to prove or disprove that the Veteran experienced an injury to his feet or chronic foot symptoms in service. (*) The examiner must also address the Veteran's reports of experiencing foot symptomatology since service requiring self-care, rather than prescribed care, such as soaking his feet. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of his scoliosis. The examiner is asked to respond to each of the following: a. Indicate whether the Veteran's scoliosis is a congenital disease or defect. For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition which is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. b. If it is determined that his scoliosis is a congenital defect, then provide an opinion as to whether it is at least as likely as not that the congenital defect was subject to a superimposed injury during service. In so doing, please refer to supportive evidence of record, to include the Veteran's lay statements and service treatment records noting diagnoses as well as any physical profiles. c. If his scoliosis is a congenital disease, then provide an opinion as to whether the disease clearly and unmistakably existed prior to service (it was not noted on his entrance examination report), and if so, provide an opinion as to whether the pre-existing disease clearly and unmistakably was NOT aggravated during service. d. If his scoliosis is not congenital in nature and/or did not clearly and unmistakably preexist service, provide an addendum opinion as to whether it is at least as likely as not that it had its onset during or is otherwise related to the Veteran's active service to include the diagnoses made therein. Each opinion provided must be supported by a rationale. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.