Citation Nr: 21064359 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-03 670 DATE: October 19, 2021 REMANDED Entitlement to service connection for residuals of cold weather exposure to (including a resulting neurological disorder of) the left upper extremity is remanded. Entitlement to service connection for residuals of cold weather exposure to (including a resulting neurological disorder of) the right upper extremity is remanded. Entitlement to service connection for residuals of frostbite of the toes is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1952 to August 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. In March 2021, the Board reopened the Veteran's claims for service connection herein and remanded this matter for further evidentiary development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Initially, the Board notes that the Veteran's service treatment records (STRs) are fire-related and presumed to have been destroyed or damaged by a fire at the National Personnel Records Center facility in 1973. See March 2007 VA Memorandum. In situations where STRs are completely or partially unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The legal standard is not lowered for proving a claim for service connection, but rather the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran is increased. Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicolson, 19 Vet. App. 215 (2005). In any event, in this current appeal, available service personnel records note that the Veteran was awarded the Combat Infantryman Badge and the Korean Service Medal. He also had one year and four months of foreign service. His service in Korea has previously been, and continues to be, conceded by the Board. Service connection for residuals of cold weather exposure to (including a neurological disorder of) the left upper extremity Service connection for residuals of cold weather exposure to (including a neurological disorder of) the right upper extremity In March 2021, the Board remanded this matter to obtain a VA examination to clarify the diagnosis(es) of the neurological disability of the Veteran's upper extremities and to obtain an etiological opinion. The Veteran contends that he has a neurological disorder in his left and right upper extremities related to cold weather exposure during his service in Korea. The Board noted that the February 2018 VA examination included a diagnosis of bilateral upper extremity median neuropathy but did not provide an etiology opinion and that the December 2018 VA addendum provided a different diagnosis of carpal tunnel syndrome and opined that it was less likely than not that his condition was related to his claimed cold weather exposure. Both examiners failed to address his contentions of cold weather exposure and whether such is the cause of, or related to, his current disabilities. The Board directed the RO to obtain an examination and opinion addressing the nature and etiology of the neurological disability of his upper extremities. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. An examination and opinion were obtained in June 2021. The examiner diagnosed bilateral carpal tunnel syndrome but, in the provided opinion, also indicated that a generalized peripheral neuropathy is suspected. The examiner does not appear to have taken any steps or conducted further inquiry to confirm this generalized peripheral neuropathy, nor is it clear why the examiner did not include this as one of the Veteran's diagnoses. The examiner simply opined that it was less likely than not that the Veteran's right or left upper extremity carpal tunnel syndrome is due to any events related to service. The examiner did not appear to consider the Veteran's cold weather exposure and instead focused on his post-service work as a truck driver and the common finding of carpal tunnel syndrome seen in that occupation. The examiner indicated that it would be entirely speculative to link the Veteran's carpal tunnel syndrome or any other neurologic issue to any cold weather exposure that ended in 1954 but did not address the Veteran's contentions regarding the continuation of upper extremity symptoms beginning in, and continuing since, his military service. No opinion addressing the Veteran's generalized peripheral neuropathy indicated on the examination report was provided. The Board finds that the June 2021 opinion is inadequate, as the examiner did not address the Veteran's contentions, failed to clarify the multiple diagnoses contained in the examination report, and failed to address adequately the etiology of the noted generalized peripheral neuropathy. Indeed, at present, it appears that no VA examiner has adequately considered the Veteran's contentions. Given the inadequacies of the June 2021 medical opinion, the Board finds that there has not been substantial compliance with the March 2021 Board remand. Stegall, 11 Vet. App. at 271. As such, a remand is necessary for corrective action, to include obtaining an adequate medical opinion. Service connection for residuals of frostbite of the toes In March 2021, the Board remanded this matter to obtain a VA examination to address whether the Veteran has residuals of frostbite of his lower extremities related to his military service. He contends that he has residuals of frostbite of his lower extremities related to cold weather exposure during his service in Korea. His VA and private treatment records reflect decreased sensation to the lower extremities, tingling in the feet, and reports of his feet feeling cold and numb following cold weather exposure during active duty. See June 2012 and March 2016 VA Treatment Records and January 2013 Private Treatment Records. The Board previously noted that the February 2018 VA examination was inadequate, as the examination report was inconsistent. The examiner included a diagnosis of peripheral neuropathy of the lower extremities but then noted that the Veteran's physical examination was normal. The examiner opined that, given the lack of documented treatment during service and no post-service treatment for the Veteran's lower extremities, it was less likely than not related to his military service. As noted in the introduction to this decision, the Veteran's STRs are unavailable, and the Board noted that the examiner failed to address the Veteran's contentions that his bilateral lower extremity disabilities are related to his in service cold weather exposure. The Board directed the RO to obtain an examination and opinion addressing the nature and etiology of the residuals of frostbite of the lower extremities. A VA examination and opinion was obtained in June 2021. The examiner indicated that the Veteran had no diagnosis of cold injuries and only noted symptoms related to the Veteran's hands. No symptoms related to the Veteran's feet were indicated. The examiner indicated that there were no findings, signs, or symptoms to support a diagnosis of frostbite of the toes. In providing an opinion, the examiner opined it was less likely than not that the Veteran's condition was related to his military service, as he had no cold weather injury. The examiner opined that there was nothing in his separation examination to indicate a cold weather problem and found that there was no evidence in the medical records of any disability related to a cold weather injury. It appears that the examiner gave no consideration to the Veteran's previously documented contentions regarding his symptoms of a possible cold weather injury, nor was any consideration given to the prior December 2018 VA examination which noted symptoms of cold sensitivity and numbness or to the VA and private treatment records which noted the same symptoms in addition to decreased sensation and tingling. In this regard, the examiner failed to address the conflicting evidence of record or reconcile the provided opinion with the other findings documented on the previous VA examination and in the Veteran's treatment records. Thus, the Board finds that the June 2021 opinion is inadequate, as the examiner did not address the Veteran's contentions and failed to reconcile the contradictory findings provided in the examination report with the other evidence of record. Given the inadequacies of the June 2021 medical opinion, the Board finds that there has not been substantial compliance with the March 2021 Board remand. Stegall, 11 Vet. App. at 271. As such, a remand is necessary for corrective action, to include obtaining an adequate medical opinion. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran's bilateral upper extremity condition. The record must be made available to, and be reviewed by, the VA examiner. An additional examination may be obtained if the examiner deems it necessary. After reviewing the claims folder, the examiner is asked to do the following: a. Clarify the nature of the Veteran's neurological disability of the bilateral upper extremities. Of note, bilateral carpal tunnel syndrome, bilateral upper extremity median neuropathy, and a generalized peripheral neuropathy have been diagnosed at various points during the appeal period. b. Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's neurological disability(ies) of the bilateral upper extremities was(were) incurred during his active service or within one year thereafteror is(are) otherwise causally related to his active service or to an accident therein, to include whether such is consistent with his reports of exposure to cold weather conditions during his active service. In expressing these opinions, the examiner is advised that the Veteran is competent to report his relevant symptoms and his exposure to cold weather conditions in service. The examiner is also reminded, as noted earlier herein, that the Board concedes the Veteran's service in Korea. The examiner is advised that the Veteran, prior to his passing, was competent to report his symptoms and history and that any such reports must be acknowledged and considered in formulating any opinion requested herein. Rationale for all opinions expressed must be provided. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she must explain why 2. Also, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his bilateral lower extremity condition, manifested by symptoms including numbness, tingling, and cold feet. The record must be made available to, and be reviewed by, the VA examiner. An additional examination may be obtained if the examiner deems it necessary. After reviewing the claims folder, the examiner is asked to do the following: a. Clarify the nature of the Veteran's bilateral lower extremity disability, to include addressing whether he has residuals of frostbite characterized as numbness, tingling, and cold feet as documented in his VA and private treatment records and as reported during his December 2018 VA examination. b. Then, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such diagnosed disability of the lower extremities was incurred in the Veteran's active service or within one year thereafteror is otherwise causally related to his active service or to an accident therein, to include whether such is consistent with his reports of exposure to cold weather conditions during his active service. In expressing these opinions, the examiner is advised that the Veteran is competent to report his relevant symptoms and his exposure to cold weather conditions in service. The examiner is also reminded, as noted earlier herein, that the Board concedes the Veteran's service in Korea. The examiner is advised that the Veteran is competent to report his symptoms history and such reports must be acknowledged and considered in formulating any opinion requested herein. Rationale for all opinions expressed must be provided. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she must explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any scheduled VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.