Citation Nr: 21022377 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-34 994 DATE: April 15, 2021 REMANDED The claim for service connection for bilateral lower extremity peripheral neuropathy, due to the residuals of frostbite, is remanded. REASONS FOR REMAND The Veteran had active duty service in the Army from September 1974 to September 1976. There was a Board videoconference hearing held in June 2018 before the undersigned Veterans Law Judge (VLJ), the transcript of which is of record. In July 2018, the Board remanded this case for scheduling VA examination as to the current diagnosis and etiology of bilateral lower extremity peripheral neuropathy, this claimed as being due to the residuals of frostbite during service. In September 2020, the Board remanded the case again, requesting a supplemental medical opinion. The reason for the supplemental opinion was that the May 2019 VA examination primarily relied on the medical records and did not address the lay evidence. The case has since returned to the Board for further appellate review. Unfortunately, there has not been substantial compliance with the Board’s remands and therefore a decision cannot be rendered. See Stegall v. West, 11 Vet. App. 268 (1998). The claim for service connection for bilateral lower extremity peripheral neuropathy, due to the residuals of frostbite, is remanded. This claim must be remanded again because an opinion that considers the lay evidence of record has not been obtained. An opinion that relies on absence of documentation on service treatment records without consideration of the Veteran’s lay assertions is inadequate. The November 2020 VA examiner alluded to the Veteran’s statement that he was told he had a cold injury. However, no mention was made about the Veteran’s wife’s statement or his other lay assertions. Service treatment records (STRs) do not document an issue as far as cold weather injury. A January 1975 record did notate there was bilateral foot pain present for several days, at the same time as describing left side hip pain. However, the Veteran’s own competent statements and hearing testimony give the information as to claimed injury in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (competency of the claimant to report observable events from service, where found credible). According to a May 2013 statement, during service in Korea the unit in which he served would be in the field sometimes for days on end and he started having trouble with his feet from the very cold conditions. First, the Veteran went to the Aid Station in the field and they said he must have had frozen his feet. They gave him elastic socks to wear and later he found out they were called geri-socks. When they returned from the field, he went to sick call. They checked out his feet again and said he had frozen both feet. The Veteran kept wearing the socks they gave him even during the rest of his Army service. They also gave him some cream to stop the itching and the burning. The Veteran was to come back and get more cream as needed and they gave him more socks. After leaving the service his feet continued to both him. VA doctors would give him different creams for the soreness, itching and burning. There was not much success with this treatment, but it was said that the feet may have gotten frost bite. Another podiatrist made a similar observation it might be frost bite and prescribed Gabapentin for nerve damage to both feet. In an account from April 2014, the Veteran described initial treatment for frost bite, at Fort Polk Louisiana, in January 1975 because while on maneuvers it was stated is gear and feet got wet and in very cold temperatures, and he was treated at the time with special socks, lotion and medication of the pain. He attended several follow up visits. The Veteran described further that on transfer to Korea he froze his feet on three different occasions. These statements show possible in-service injury. While not necessarily proving those injuries occurred, the statements should be thoroughly considered. The condition was diagnosed post-service in April 2013 at the VA Medical Center (VAMC) as peripheral neuropathy, likely related to cold injury residuals, from the Veteran’s history. The rationale of this VA podiatrist was not indicated at the time, and a more thorough study was needed so VA examinations were done. Because the lay evidence has yet to be addressed, another opinion is necessary before the Board can proceed to a decision on this claim. The Board emphasizes that it is not determining whether or not the lay statements that about cold injuries in service are credible at this time, as the additional development set forth in the directives below could impact that determination. The matter is REMANDED for the following action: 1. Provide the Veteran’s claims file to a suitable clinician to provide an opinion as to whether the Veteran has peripheral neuropathy of the lower extremities as a residual of frostbite in service. The claims file must be provided to and reviewed by the examiner. A physical or telehealth examination of the Veteran is only necessary if deemed so by the clinician. First, the clinician must determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran had a cold injury in service. Although an independent review of the claims file is required, the clinician’s attention is called to the following: a. The Veteran’s May 2013 statement describing exposure to cold conditions in service. b. The Veteran’s May 2014 statement describing what he thought was a cold injury and subsequent treatment. c. The Veteran’s December 2015 statement describing what he thought was a cold injury in Louisiana and subsequent cold injury in Korea. d. The Veteran’s June 2018 hearing testimony where he describes his in-service treatment in Korea for a cold injury. e. The Veteran’s wife’s June 2018 statement describing her marriage to the Veteran in 1977 and his recounting of what he thought was a cold injury in service. f. The Veteran’s May 2020 account of what he thought was a cold weather injury in Fort Polk Louisiana in 1975, and again when sent to Korea. For the purposes of this remand only, and for the limited purpose of providing a medical opinion, the examiner should assume that the lay descriptions of what happened to the Veteran in service are accurate. If there is a medical reason to doubt their accuracy or veracity, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. If the clinician determines that a cold injury was sustained in service, the clinician should opine as to whether bilateral lower extremity peripheral neuropathy is at least as likely as not (50 percent or greater probability) etiologically related to cold weather exposure during service. If the clinician determines that a cold injury was NOT sustained in service, the clinician should opine as to whether bilateral lower extremity peripheral neuropathy is at least as likely as not was related to any other incident of service. In order for the opinion to be legally adequate, the lay evidence must be considered. Dalton v. Nicholson, 21. Vet. App. 23 (2007). A complete rationale should be provided for any opinion given. If it happens that the opinion cannot be stated without resort to speculation, the examiner should indicate this and why it is the case. (Continued on the next page)   2. Review the claims file. If the directives specified in this remand have not been implemented, take proper corrective action before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 3. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lyons, 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.