Citation Nr: 21077198 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-49 935A DATE: December 28, 2021 REMANDED Entitlement to service connection for a lower back disorder is remanded. Entitlement to service connection for residuals of cold injuries manifesting in the bilateral upper extremities is remanded. Entitlement to service connection for residuals of cold injuries manifesting in the bilateral lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1952 to July 1954. The claims on appeal come before the Board of Veterans' Appeals (Board) on appeal of an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. During the pendency of the claim, the Veteran died in October 2016. The appellant is his surviving spouse, whose status as substitute claimant was recognized in October 2018. The case was previously before the Board in April 2019 when it was remanded for further development. Entitlement to service connection for a lower back disorder In the April 2019 remand, the Board directed that an opinion be obtained regarding the etiology of the Veteran's back disability. An opinion was provided in December 2019. The examiner indicated it was less likely than not that a back disability was related to service. The rationale was that while the Veteran was competent to report observable manifestations of his disability he was not competent to render a diagnosis based on those symptoms since he did not have the requisite medical knowledge. The Veteran was seen in 1973, 15 years post service for back pain, and that a significant injury from being thrown from a truck would have manifested itself within weeks or months, although they could cause muscular strains which do not causes arthritis. While the examiner is correct in stating that the Veteran was competent to report observable manifestations of his disability but was not competent to render a diagnosis; service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, the remand indicated that the examiner was to identify and comment on all of the Veteran's diagnoses prior to his death, which was not accomplished. Remand for an additional opinion is needed. Entitlement to service connection for claimed residuals of cold injuries manifesting in the bilateral upper extremities Entitlement to service connection for claimed residuals of cold injuries manifesting in the bilateral lower extremities The Veteran had contended in a June 2014 statement that he experienced extremely cold temperatures during active duty service in Korea and suffered cold injuries to the bilateral upper extremities and bilateral lower extremities. In the April 2019 remand, the Board directed that an opinion be obtained regarding the etiology of the Veteran's back disability. An opinion was provided in December 2019. The examiner indicated it was less likely than not that the Veteran's osteoarthritis of the hands and knees and hips were related to frostbite suffered in service. The rationale was that since the Veteran's separation examination did not document significant findings, no sequelae would be expected for his frostbite and diffuse osteoarthritis could be seen at an older age. The examiner did not comment on the fact that the Veteran was diagnosed with rheumatoid arthritis which is also noted in private treatment records from Alabama Spine and Pain. While it is included in the Veteran's past medical history, it is noted as "existing." Also while commenting on the severity of the frostbite in service, the examiner did not comment on the Veteran's statements in his June 2015 notice of disagreement, where he indicated that his feet and hands were damaged due to frostbite and that he was given cream which did not help. The Veteran also stated that he did not seek further medical attention because he believed there was nothing else that could be done. Remand for an additional opinion considering this evidence is needed. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran's low back disorders. The electronic claims file must be made available to the clinician. Based on review of the evidence of record and this remand, the clinician should provide the following opinions: a) The examiner should identify all of the low back disorders during the Veteran's lifetime. b) For each low back disorder identified, the clinician should opine whether the disability at least as likely as not (50 percent or greater probability) began in or was otherwise the result of military service. The absence of records reflecting treatment during service for a low back disorder is not a sufficient basis for a negative etiological opinion. The Board notes that the Veteran's service treatment records are fire-related (destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in 1973). As such, VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. See Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In providing this opinion. the clinician MUST consider statements from the Veteran regarding the onset and continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran contended that his lower back injury originated from when he was ejected from a rolled-over truck during service, and for purposes of this opinion, the Veteran's statements are considered credible. All opinions should be supported by a clear rationale. 2. Obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of the Veteran's residuals of cold injuries manifesting in the bilateral upper and lower extremities. The electronic claims file must be made available to the clinician. Based on review of the evidence of record and this remand, the clinician should provide the following opinions: a) The clinician must identify all frostbite residuals. The clinician must also address the Veteran's diagnoses of generalized osteoarthrosis involving multiple sites, including the bilateral hands and knees, as well as rheumatoid arthritis, which is reflected in the evidence of record. b) For each disability identified (including generalized osteoarthrosis involving multiple sites, including the bilateral hands and knees, as well as rheumatoid arthritis), the clinician should opine whether the disability at least as likely as not (50 percent or greater probability) began in or was otherwise the result of military service, including suffering frostbite while stationed in Korea. The absence of records reflecting treatment during service for frostbite is not a sufficient basis for a negative etiological opinion. The Board notes that the Veteran's service treatment records are fire-related (destroyed or damaged by a fire at the National Personnel Records Center (NPRC) facility in 1973). As such, VA's duty to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule is heightened. See Cuevas v. Principi, 3 Vet. App. 542 (1992); O'Hare v. Derwinski, 1 Vet. App. 365 (1991). In providing this opinion. the clinician MUST consider statements from the Veteran regarding the onset and continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran contended that as a result of suffering frostbite his feet and hands were damaged and that he was given cream which did not help. The Veteran also stated that he did not seek further medical attention because he believed there was nothing else that could be done. For purposes of this opinion, the Veteran's statements are considered credible. All opinions should be supported by a clear rationale. Bonnie Yoon Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate 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.