Citation Nr: 21013050 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 13-09 182A DATE: March 8, 2021 REMANDED Entitlement to service connection for cold injury residuals, affecting bilateral upper extremities, is remanded. Entitlement to service connection for cold injury residuals, affecting bilateral lower extremities, is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for a pulmonary/respiratory disorder, to include asthma, pulmonary emphysema and COPD is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1951 to March 1954. This matter comes before the Board of Veteran’s Appeals (Board) from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2015 when the claims were remanded for development, to include VA examinations. The Board finds the remand directives have been substantially complied with as to the claims of service connection for cold injury residuals and sinusitis, but not as to the claim of service connection for a pulmonary/respiratory disorder. The matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veterans Law Judge who took testimony from the Veteran in the January 2014 hearing retired. A transcript of the hearing is of record. In keeping with Board policy, the Veteran was sent a letter in January 2021 explaining that he has the option to give testimony before another Veterans Law Judge, or if he did not reply to the letter his claim would proceed to adjudication. The Veteran did not request another hearing within the prescribed 30-day period. Accordingly, the claim can proceed to adjudication. Additionally, the Board notes the Veteran’s service treatment records (STRs) have been reported as unavailable, as they are presumed to have been among the treatment records destroyed in the 1973 fire at the federal repository of service records. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection for cold injury residuals affecting the bilateral upper extremities, is remanded. 2. Entitlement to service connection for cold injury residuals affecting the bilateral lower extremities, is remanded. The Veteran seeks service connection for cold injury residuals in all of his extremities. In favor of his claim, the Veteran asserts that while deployed in Korea with the 65th Infantry Regiment, he suffered frostbite injuries while on guard duty. He asserted that he received emergency treatment to thaw out his feet and hands. See initial claim, dated July 2009 and translation associated with the claims file in August 2009. In another statement he asserted that after completing basic training he was shipped to Japan to be trained using the bayonet and later in February 1951 he arrived in Seoul, Korea, in the middle of the winter, lacking proper winter gear. He stated they were given some garments to cope with the cold but they still suffered a lot. He asserted they had to start fires to warm up the boots. The Veteran notes he was at the battle front with Company C of the 3rd Battalion of the 65th Infantry Brigade from the end of February 1951 to March 1952. He also recounted how by the end of the fall in 1951 his Company was trapped for months and separated from the rest of the forces in a tactical retreat during a counteroffensive from the enemy in a place called the “Valley of the Death.” He says they were supplied by air and escaped with help from allied forces from Belgium and Turkey together with Air Force support. See statement of September 2015. Additionally, the Veteran has submitted lay statements from fellow soldiers who certify that the Veteran served in Korea at the same time as them. See statements associated with the claim record in June 2011, and translation associated with the claims file in July 2019. As for his current cold injury residuals, the Veteran asserted that his feet hurt, and his nails show atrophy. See notice of disagreement (NOD), dated June 2011. At the January 2014 hearing, the Veteran testified that he had received private medical treatment for his cold injury residuals following service from Dr. C.R. See hearing transcript, page 5. In the June 2015 Board remand directives, the RO was instructed to send the Veteran and his representative a letter requesting the Veteran to provide the necessary information and authorization for VA to obtain the pertinent private medical records, to include those from Dr. C.R., who had treated the Veteran for his residuals. The June 2015 Board remand also instructed the RO to undertake any other necessary development, to include a VA examination for the Veteran’s cold injury residuals. In compliance with the June 2015 Board remand instructions, the RO sent the Veteran a letter requesting private treatment records related to his claimed conditions. See letter dated September 2015. In April 2019, VA sent the Veteran another letter specifically requesting his private medical records from Dr. C.R. To date, no additional private medical records have been associated with the claims file. As previously noted, the Veteran’s service treatment records (STRs) and other military records were presumably lost in the 1973 fire at the federal repository of service records. See memo of unavailability dated July 2010. The claims file contains few service-related records. In pertinent part, it includes a Certification of Military Service issued by the National Personnel Records Center in January 1978, that notes the Veteran’s first period of service from February 1951 to April 1952 as well as his enlistment in the regular Army in April 1952. See Certification of Military Service, associated with the claims file in February 2013. It also contains a DD-214, received by VA in December 1986, for the Veteran’s second period of service from April 1952 to March 1954, and notes the Veteran had 1 year and 2 months of “other service.” See DD-214 associated with the claims file in December 1986. Finally, the claims file also contains the Veteran’s report of medical examination for separation, dated March 1954, which does not note any detected abnormalities at the time of that examination. See report of medical examination for separation, received by VA in April 1954. The Board finds that in the present case, sufficient evidence has been provided as to whether the Veteran had service in Korea. The Veteran has been consistent regarding his assertion of service in Korea, as seen throughout the available medical records and other documents contained in the claims file. Additionally, fellow soldiers have certified that the Veteran indeed served in Korea. As the Veteran’s STRs and other personnel records are presumed lost, the Board finds that resolving doubt in his favor, the Veteran had service in Korea. Additionally, the Board observes that the Veteran is competent to report in-service cold weather exposure and symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Accordingly, resolving doubt in the Veteran’s favor, the Board concedes the Veteran’s service in Korea and his exposure to cold weather while on guard duty. The Board observes the Veteran has not yet been examined by VA regarding his claimed cold injury residuals. VA must provide an examination when there is competent evidence of a disability, or persistent or recurrent symptoms of a disability, that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In the present case, the Veteran has asserted that he suffers from cold injury residuals, described as pain in feet and nail atrophy. As these symptoms may be associated with the Veteran’s conceded service in Korea and his conceded exposure to cold weather, the Board finds a remand is necessary so that the Veteran is afforded a VA examination to ascertain whether the Veteran’s symptoms are etiologically related to his service, as there is insufficient information in the claims file to make a decision on the claim. The Board notes that at the 2014 hearing, the Veteran was assisted by a translator in order to provide his testimony. See hearing transcript, page 2. The Veteran’s medical records also show that his preferred language is Spanish, and the claims file contains many statements from the Veteran in Spanish, which have been translated by VA. Additionally, the Veteran is over 90 years old. In consideration of the possible language barrier and the Veteran’s advanced age, the Board finds the RO must contact the Veteran by phone, preferably by a native Spanish speaker, in order to provide him with another opportunity to submit the requested private medical records by Dr. C.R. in the June 2015 remand. If possible, the Veteran should also explained the status of his appeal, this remand, and the directives herein, in order to ensure that the Veteran is fully informed as to the status of his claims and his rights. 3. Entitlement to service connection for sinusitis is remanded. The Veteran seeks service connection for sinusitis. In favor of his claim, the Veteran asserts that his sinusitis is the result of his exposure to cold weather in Korea. See initial claim, dated July 2009 and translation associated with the claims file in August 2009. Additionally, the Veteran testified at the hearing that he had headaches and runny nose in service and that he currently has sinusitis and regular treatment with nasal spray. See hearing transcript page 9. In his NOD, the Veteran asserted that he has had persistent sinus symptoms since service. See NOD of June 2011. Pursuant to the June 2015 remand directives the Veteran was administered a Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (Sinusitis DBQ) in September 2019. The examiner noted a diagnosis of chronic sinusitis. The examiner also noted that the Veteran reported his condition began in service while he was in Korea and that he was given medication for it by the medical unit. The examiner further noted the Veteran’s report of sinusitis episodes 2 to 3 times a year and the medication he has been prescribed for the condition. See Sinusitis DBQ. Following the examination, the examiner subscribed a medical opinion where he opined that the Veteran’s sinusitis was less likely as not incurred in or caused by his military service. In favor of this opinion, the examiner noted that the Veteran was 50 years old, that he was in service from April 1952 until March 1954 and that the sinusitis diagnosis was made on the date of the examination- 65 years after his separation from service. The examiner also noted that the Veteran’s STRs are silent regarding any diagnosis or symptoms of sinusitis during active service and that there was no evidence of any manifestation or diagnosis of sinusitis within a year after separation from service. See Sinusitis DBQ. When VA provides an examination or medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). The Board finds this medical opinion inadequate for adjudication purposes as the examiner based his opinion on erroneous premises such as the Veteran’s age, the period of the Veteran’s service, and the date of the diagnosis. The medical opinion is also inadequate as it fails to take into consideration the Veteran’s assertion regarding continuity of symptoms since service and does not provide a sound explanation for disregarding the Veteran’s assertions. Additionally, the Board notes that there are no STRs available for this Veteran except for the report of medical examination for separation dated March 1954. Accordingly, the Board finds a remand is necessary so that the RO obtains an addendum opinion that considers the competent evidence of record as well as the Veteran’s lay assertions. In rendering this opinion, the examiner is asked to consider the conceded Veteran’s service in Korea and his exposure to cold weather. The Board notes the Veteran’s post-service treatment records are scarce. Further, the Board notes the Veteran’s medical records show he is treated for various conditions by private providers, but these records have not been associated with the claims file nor proper authorization forms for VA to obtain these records have been associated with the claims file. Upon remand, the RO is requested to afford the Veteran another opportunity to identify and submit pertinent medical records regarding treatment for his claimed conditions. 4. Entitlement to service connection for pulmonary/respiratory disorder to include asthma, pulmonary emphysema and COPD is remanded. The Veteran seeks service connection for a respiratory/pulmonary condition, initially claimed as asthma. In June 2015, the Board remanded the claim for development, to include a VA examination. In pertinent part, the Board noted that the Veteran’s post service medical records showed possible diagnoses of chronic obstructive pulmonary disease (COPD) and pulmonary emphysema, in addition to the claimed asthma. Thus, the Board recharacterized the Veteran’s claim from service connection for asthma to a claim of service connection for a pulmonary/respiratory disorder to include asthma, pulmonary emphysema and COPD, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board, in its remand directives requested that the examiner identify all respiratory disabilities present at any time pertinent to the appeal, and that for each disability, the examiner was to provide a medical opinion as to whether it was at least as likely as not that it had its onset during service or was otherwise related to the Veteran’s service. Pursuant to the June 2015 Board remand directives, the Veteran was administered a Respiratory Conditions Disability Benefits Questionnaire (Respiratory Conditions DBQ) in September 2019. In this examination, the examiner noted a diagnosis of asthma. He also noted that the evidence showed a diagnosis of pulmonary emphysema but did not add the condition under the diagnosis section of the examination and only noted it in a separate comment. Following the examination, the examiner subscribed a medical opinion where he opined that the Veteran’s asthma is less likely as not incurred in or caused by his military service. In favor of this opinion the examiner noted the Veteran is a 50 year old male, who entered active service on April 1952 and was release on March 1954, that his asthma was diagnosed 59 years after separation from service, in 2013, that his STRs are silent regarding any diagnosis or symptoms of asthma during active service and that there is no evidence of any manifestation or diagnosis of asthma a year after separation from active service. The Board finds this medical opinion inadequate for adjudication purposes as the examiner based his opinion on erroneous premises such as the Veteran’s age, the period of the Veteran’s service, and the date of the diagnosis. Additionally, the Board notes that there are no STRs available for this Veteran except for the report of medical examination for separation dated March 1954. Furthermore, the Board finds this examination and medical opinion did not fully comply with the Board June 2015 remand directives as the examiner did not address the Veteran’s other diagnoses of COPD and pulmonary emphysema in his opinion. Accordingly, the Board finds a remand is necessary to obtain an addendum medical opinion regarding the Veteran’s diagnosed pulmonary/respiratory conditions and whether any one of them is etiologically related to the Veteran’s service, to include his conceded cold weather exposure in Korea. The matters are REMANDED for the following action: 1. Contact the Veteran by phone. At least 2 attempts must be completed and documented in the claims file. If the Veteran is contacted successfully, explain the status of the appeal so that the Veteran is informed. Explain that VA still needs the private medical records from Dr. C.R., as he testified at the hearing that this doctor had provided him with medical treatment for his cold injury residuals and this information is pertinent to his appeal. Explain to him the process to submit private medical records, if necessary. This phone call should be completed by a native Spanish speaker, if possible. Note in the claims file if the Veteran requests time to submit the private medical records or if he wishes that the appeal is adjudicated based on the available medical evidence, without submitting any additional private medical evidence. 2. If VA is unable to contact the Veteran by phone, send the Veteran another letter requesting the private medical records from Dr. C.R., and any other private medical record that shows treatment for any of the claimed conditions of cold injury residuals, sinusitis, and pulmonary/respiratory conditions. Include the necessary authorization forms. If VA contacted the Veteran by phone as requested in step 1, and the Veteran requested VA to continue his appeal based on the evidence of record and does not wish to submit further medical evidence, this step can be omitted. 3. If the Veteran completes any authorization form authorizing VA to obtain his private medical records, please attempt to obtain said records. Any response, including negative responses must be associated with the claims file. 4. Update existing VA medical records. 5. After the preceding steps have been completed and a reasonable amount of time has passed to allow the Veteran to submit the requested medical evidence, please schedule the Veteran for an examination regarding his cold injury residuals in all of his extremities. The examiner is asked to: a. Identify any and all disabilities the Veteran has been diagnosed with in his extremities (bilateral upper and bilateral lower extremities). b. Opine whether any of the identified disabilities are at least as likely as not related to the Veteran’s service, to include his exposure to cold weather in Korea. i. The examiner must take into consideration the Veteran’s competent lay statements regarding having been treated for frostbite while in service, and his symptomatology of pain in his feet and nail atrophy. ii. The examiner must also address whether any other cold weather injury residuals are present. The examiner is specifically directed to discuss whether such symptoms were the probable result of cold injuries or can be attributed to any other cause. The examiner should consider and discuss the following symptoms, as learned and acknowledged by VA, to be typical of cold injuries: chronic pain of causalgia type, cold sensitization, joint pain or stiffness, night pain, edema, numbness, vascular insufficiency, increased risk of peripheral neuropathy, and arthritis. Also, the examiner should consider and discuss, as learned and acknowledged by VA, that signs and symptoms of cold injuries may reoccur. 6. Obtain an addendum medical opinion regarding the Veteran’s claimed sinusitis disability. The examiner is asked to opine: a. Whether the Veteran’s sinusitis is at least as likely as not related to his service, to include his exposure to cold weather in Korea. i. The examiner must take into consideration the Veteran’s lay assertions of being treated for the condition while in service and having continuous symptoms since service. A new VA examination may be conducted if deemed necessary by the examiner. 7. Obtain an addendum medical opinion regarding the Veteran’s claimed pulmonary/respiratory disability. The examiner is asked to: a. Identify all diagnoses pertaining the Veteran’s pulmonary/respiratory disability, to include COPD, asthma and pulmonary emphysema. b. For each identified diagnosis, the examiner must opine whether it is at least as likely as not the condition is related to military service, to include his conceded exposure to cold weather in Korea. i. In emitting these opinions, the examiner is asked to address the Veteran’s assertion of suffering from pulmonary/respiratory symptoms since service. ii. The examiner must specifically discuss whether in-service bouts of asthma or other respiratory symptoms as noted in lay statements could have signaled or led to any of the diagnosed disabilities to include: COPD, asthma and/or pulmonary emphysema. A new VA examination may be conducted if deemed necessary The examiner is asked to provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. If the inability to provide an opinion is the result of a need for additional information, the physician must identify the additional information needed. The examiner is further advised that, legally: (1) a VA examiner’s failure to consider a Veteran’s testimony when formulating his or her opinion renders that opinion inadequate; (2) the presence of medical evidence (e.g., supporting medical records) is not necessarily required to establish entitlement to disability compensation; and (3) competent lay evidence (such as the aforementioned lay statements) can be sufficient, in and of itself (even without supporting medical evidence), to establish continued symptomatology and a nexus between a claimed disability and an in-service injury, disease or event 8. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.