Citation Nr: 21016118 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 18-50 871 DATE: March 19, 2021 ISSUES 1. Entitlement to service connection for a disability to the right upper extremities (claimed as numbness of the fingers), to include as due to residuals of a cold injury. 2. Entitlement to service connection for a disability to the left upper extremities (claimed as numbness of the fingers), to include as due to residuals of a cold injury. 3. Entitlement to service connection for a disability to the left lower extremities (claimed as numbness of the toes), to include as due to residuals of a cold injury. 4. Entitlement to service connection for a disability to the right lower extremities (claimed as numbness of the toes), to include as due to residuals of a cold injury REMANDED Entitlement to service connection for a disability to the right upper extremities (claimed as numbness of the fingers), to include as due to residuals of a cold injury is remanded. Entitlement to service connection for a disability to the left upper extremities (claimed as numbness of the fingers), to include as due to residuals of a cold injury is remanded. Entitlement to service connection for a disability to the left lower extremities (claimed as numbness of the toes), to include as due to residuals of a cold injury is remanded. Entitlement to service connection for a disability to the right lower extremities (claimed as numbness of the toes), to include as due to residuals of a cold injury is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1956 to June 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran claimed entitlement to service connection for bilateral upper and lower extremity disabilities, each due to residuals of a cold injury, and all four of those claims were denied in a January 2018 rating decision. The Veteran filed a timely Notice of Disagreement (NOD) in January 2018, listing those claims related to the right and left upper extremities. As it relates to the lower extremities however, the claim for entitlement to service connection for the left lower extremity was listed twice (as opposed to including entitlement to service connection for the right lower extremity). As such, the Veteran was issued a Statement of the Case (SOC), and only those three issues listed in the NOD were identified; entitlement to service connection for a disability of the right lower extremity was not included. The Veteran submitted a timely VA Form 9 in November 2018, writing that he was “diagnosed with frostbite in both hands and feet … this is why my hands and feet are numb.” The Veteran requested a hearing before a Veterans Law Judge, and the Veteran’s three claims were eventually certified to the Board in January 2020. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in February 2021 to present testimony on the issues on appeal. During the hearing, the Veteran repeatedly referred to all four of his originally claimed disabilities, including the disabilities related to his bilateral toes. A transcript of the hearing has been associated with the Veteran’s claims file. In consideration of the above, the Board finds that the Veteran has consistently intended to claim entitlement to service connection for four separate disabilities, related to the bilateral upper and bilateral lower extremities. In the Veteran’s NOD, he wrote entitlement to service connection of the left lower extremity twice, which the Board presumes to be a mistake. He has consistently spoken about disabilities to both of his lower extremities, and that was reflected in his February 2021 testimony as well as his original claims of entitlement to service connection. Thus, affording the Veteran the benefit of the doubt, the Board has taken jurisdiction over the additional claim of entitlement to service connection for a disability to the right lower extremities (claimed as numbness of the toes), to include as due to residuals of a cold injury, which has now been reflected in the Issues Section above. See further, Roy v. Brown, 5 Vet. App. 554, 555 (1993) (appellate review of an RO decision is initiated by a Notice of Disagreement); see further Clemons v. Shinseki, 23 Vet. App. 1 (2009) (when a Veteran makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for disabilities to the right and left upper extremities (claimed as numbness of the fingers), and for disabilities to the right and left lower extremities (claimed as numbness of the toes), each to include as due to residuals of a cold injury are remanded. The Veteran has claimed that he experiences pain and numbness in his bilateral upper and lower fingers and toes, which are related to a frostbite injury that occurred while he was on active duty. See November 2018 VA Form 9. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To begin, the Veteran’s diagnoses have not been confirmed. VAMC records from February 2018 note complaints of “numbness and tingling in feet … needle-like sensation in feet and hands when they get cold.” Further records from June 2017 note that the Veteran had “bilateral numbness of fingers and hands.” The Veteran told his physician during that primary care visit that he attributed it to “being in Korea ... had frostbite at that time.” These complaints have generally been added to the Veteran’s “medical history” within VAMC records, but those records do not contain official diagnoses related to residuals of cold injuries. The Board is reminded that the Veteran has complained of numbness and pain to his bilateral fingers and toes. He has also stated that this numbness and pain has led to a functional loss, including in his ability to grip. Therefore, on remand, any diagnosis should be evaluated pursuant to the recent holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders v. Wilkie, the Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 ”refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” The case reversed years of precedent that had held that “pain alone is not a disability for the purposes of VA disability compensation.” Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. As it relates to the second criteria, the Veteran testified before the undersigned Veterans Law Judge in a hearing from February 2021. The Veteran testified that he was on active duty in the Republic of Korea and that it was just terribly cold over there … we didn’t have the proper equipment to keep warm … we had gloves but at times you had to take gloves off to repair [vehicles] to succeed in your work … we did the best we could. We wore what we could. But it just wasn’t enough protection to keep your hands warm. He also testified that the cold injuries to his feet were not as bad as his hands, however they still were very cold. He testified that a “medic in our outfit attended to my frostbite and stuff,” but that it was on an “unofficial” basis. The Veteran stated that the cold injuries caused frostbite to his fingers and toes, and that the pain and numbness continues to this day. The Veteran also testified that he has a copy of official “travel orders” documenting his time spent in Korea, however the Board notes that this travel order has not been submitted to the Veteran’s claims file. The Veteran has also submitted a signed statement from January 2018, whereby the Veteran wrote that he certifies that he “was in Korea from February 1957 to July 1958. It was at this time that I received frostbite to my hands and feet.” The statement is notarized. The Veteran’s Representative also submitted an Appellate Brief in December 2018, arguing that the Veteran had “rode in and worked on trucks with canvas tops, exposing his extremities to the cold weather around him. They did not have metal coverings or heat in the vehicles.” The Brief also argued that the Veteran “had standard issue cold weather boots and gloves, which he said did not insulate him very well in the cold weather environment,” and that “he would often remove the wool to better work on his vehicle.” The Veteran is competent to report the symptoms he experiences, such as those associated with the pain and numbness in his fingers and toes. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran’s Representative also stated during the Veteran’s hearing that the Veteran’s military personnel and service treatment records were destroyed by a fire. The RO attempted to gather what records were available in January 2016 by contacting the National Personnel Records Center (NPRC), and only the Veteran’s DD-214 was available. The Veteran’s DD-214 does not indicate foreign service in Korea specifically, but it does confirm that he completed one year, three months, and twenty-one days of foreign service. It also confirms that his military occupational specialty (MOS) was as a Heavy Vehicle Driver, which helps to confirm what the Veteran has testified to. In consideration of the above, the Veteran’s claims file includes documented complaints of pain and numbness to his bilateral fingers and toes. He has also testified as to an in-service cold injury during his time in the Republic of Korea. While the Board cannot confirm that the Veteran served in Korea, as the Veteran’s records were destroyed by a fire, the Veteran has submitted competent and consistent testimony related to this cold injury in service, and his DD-214 does indicate he was a heavy vehicle operator, and had over fifteen months of foreign service. Despite this, the Veteran has not been given a VA examination for his claimed disabilities. VA’s duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A (d)(2), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. Id. at 83. Therefore, because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims for entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The RO first must contact the Veteran and request that he submit the “travel order” document that purports to confirm the Veteran served in the Republic of Korea. Following that, the RO should schedule the Veteran for a VA examination so that each of his claimed disabilities can be confirmed, and etiological opinions can be provided for each. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit the “travel order” document(s) that he claims confirm his foreign service in the Republic of Korea. Ensure that such document(s) have been associated with the claims file. 2. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 3. Schedule the Veteran for VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to assess the nature and etiology of the Veteran’s claimed disabilities to the bilateral upper and lower extremities (claimed as numbness and pain of the fingers and toes). The entire record must be reviewed by the examiner. All necessary tests should be conducted. Based on the examination results and the review of the entire claims folder, the examiner is asked to opine as to the following: (a.) the examiner is to provide a diagnosis which accounts for the Veteran’s present symptoms of his claimed numbness and pain to the bilateral upper and lower fingers and toes. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the “Functional Impact” section of the report. (b.) Then, for any/all disabilities found, provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s diagnosed disability is causally related to, or aggravated by, his military service. Any opinion should include a complete rationale. The examiner is reminded that, despite the Veteran’s service-treatment records being destroyed by a fire, the Veteran has provided lay statements and competent testimony indicating that he experienced frostbite to his fingers and toes as a vehicle operator, while on active duty in Korea. The examiner is also reminded that his military occupational specialty of Heavy Vehicle Operator, as well as his foreign service, have each been confirmed by his DD-214. A detailed rationale for the opinions must be provided. The examiner are reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner(s) feels that the requested opinions cannot be rendered without resorting to speculation, the examiner(s) must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). (Continued on next page.) 4. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.