Citation Nr: 21025976 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-01 264 DATE: April 29, 2021 REMANDED Entitlement to service connection for residuals of frostbite of the feet is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from February 1987 to May 1990. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision. In November 2016, a videoconference hearing was held before the undersigned; a transcript is in the record. In February 2018, the Board denied service connection for residuals of frostbite of the feet. The Veteran appealed the Board’s February 2018 decision to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a June 2019 Joint Motion for Partial Remand (JMPR) by the parties. A June 2019 CAVC Order remanded the matter of service connection for residuals of frostbite of the feet for compliance with JMPR instructions. In December 2019 and November 2020, the issue of service connection for frostbite residuals was remanded for further development. [A February 2021 Decision Review Officer (DRO) decision granted service connection for major depressive disorder, and that matter is no longer before the Board.] The Board regrets further delay but, unfortunately, finds that the December 2019 and November 2020 remand instructions were not adequately fulfilled. See Stegall v. West, 11 Vet. App. 268 (1998). In the June 2019 JMPR, the parties agreed that the Board failed to ensure that VA satisfied the duty to assist by obtaining an adequate VA examination. The parties agreed that the “January2010 VA examiner did not address whether [the Veteran’s] reported ‘pain,’ ‘redness,’ ‘stiffness,’ and ‘lack of endurance’ were manifestations of a ‘cold injury.’” The JMPR also noted additional diagnoses and conditions on December 2013 VA foot examination (conducted pursuant to a claim seeking service connection for pes planus), including metatarsalgia, fungus infection, bilateral keratoses plantaris, and degenerative changes of the right big toe metatarsal joint (and notations of “dry thickened skin on the lateral and medial sides of the posterior half of the feet, thickened skin calluses, and fungus in between the toes”). In November 2020, the Board found that the January and February 2020 opinions were inadequate because they did not adequately address the December 2019 remand directives. The Board directed the examiner to identify (by diagnosis) each left and right cold injury residual foot disability entity found on examination or shown in the record specifically acknowledging and addressing the January 2010 VA examination notations of pain, redness, stiffness, and lack of endurance, as well as the December 2013 VA examination notations of metatarsalgia, fungus infection, bilateral keratoses plantaris, degenerative changes of the right big toe metatarsal joint, dry thickened skin on the lateral and medial sides of the posterior half of the feet, and thickened skin calluses. The examiner noted some of the previous foot problems in the record but did not discuss whether or not the problems, each, were cold injury residuals (and if not explain why not). In December 2020 VA opinions (the left and right feet were addressed separately), the provider began with evidence review and copied the November 2020 remand language and directives and the pertinent parts of the January 2020 foot disability benefits questionnaire (DBQ), January 2020 cold injury DBQ, December 2013 foot DBQ, December 2013 flatfoot DBQ, and December 2010 foot DBQ into the evidence section. The provider indicated that he had reviewed the three foot examinations completed in 2010, 2013 and 2020 for the Veteran’s claim of cold injury residuals of the feet secondary to his active duty service in Japan and Korea and opined that there was no discernable evidence of any residual clinical findings of cold injury “at all.” The provider then reiterated the findings on the 2010, 2013, and 2020 examinations and concluded by stating that, considering all of the above, there is no significant current or past (2010, 2013) clinical evidence of any cold injury residuals for the Veteran’s right (and left) foot that is supported by the documents noted above and cited below. The December 2020 opinions are inadequate because they did not adequately address the November 2020 remand specific directives (which were given to comply with JMR findings). Although the provider noted the findings of the previous examinations in detail and opined that there was no discernable evidence of any residual clinical findings of cold injury in such examinations or other treatment records, he did not explain why such foot disorders and symptoms (i.e. metatarsalgia, fungus infection, pain, redness, etc.) were not cold injury residuals, as was specifically requested. Therefore, a remand for a fully adequate medical advisory opinion is necessary. As the Veteran appears to be receiving ongoing treatment for his feet disabilities, and records of such treatment may contain pertinent evidence, (and VA records are constructively of record), updated treatment records must be secured. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, any not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received for his feet. 2. Then arrange for the record to be forwarded to an appropriate clinician (other than the December 2020 VA opinion-provider) for review and an addendum opinion regarding the nature and likely etiology of the Veteran’s claimed residuals of frostbite of the feet. [If further examination of the Veteran is deemed necessary for an opinion sought, such should be arranged.] On review of the record (including this remand, the January 2010 and December 2013 VA foot examination reports, January 2020 DBQs and any records received pursuant to the development sought above), the consulting provider should provide opinions that respond to the following: (a) Identify (by diagnosis) each left and right foot cold injury residual (or potential cold residual) disability entity found on examination or shown in the record. The explanation of rationale for the opinion should acknowledge the January 2010 VA examination notations of pain, redness, stiffness, and lack of endurance, and the December 2013 VA examination notations of metatarsalgia, fungus infection, bilateral keratoses plantaris, degenerative changes of the right big toe metatarsal joint, dry thickened skin on the lateral and medial sides of the posterior half of the feet, and thickened skin calluses. The consulting provider should indicate (regarding each symptom reported and each finding noted (to include the earlier findings in the record on January 2010 and December 2013 VA examinations) whether it is a cold injury residual. (b) If the foot disabilities and notations of pain, redness, etc. identified on the above examinations, on contemporaneous examination, if one is needed, or otherwise shown in the record, are determined by the provider to NOT be cold injury residuals, EXPLAIN WHY they are not. (c) Regarding each foot cold injury residual disability entity diagnosed, opine further whether it is at least as likely as not (a 50% or better probability) a residual of a cold injury/frostbite in service? [For the purpose of the opinion, exposure to cold weather during service should be assumed.] (d) If, (and only if), a cold injury residual-type disability is diagnosed and is found to at least as likely as not be related to the Veteran’s service, distinguish, to the extent possible, the symptoms and functional impairment due to the cold injury residual(s) from any symptoms/functional impairment due to the Veteran’s service-connected bilateral pes planus. The examiner must include rationale with all opinions, with citation to supporting clinical data and medical literature/treatise, as deemed appropriate. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.