Citation Nr: 22014189 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-27 859 DATE: March 11, 2022 REMANDED The issue of entitlement to service connection for cold injury residuals, to include neuropathy, is remanded. The issue of entitlement to service connection for a low back condition is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1958 to January 1960. These matters come to the Board of Veterans' Appeals (Board) on appeal from May 2012 and February 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction is currently with the RO in Montgomery, Alabama. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2019. The transcript of the hearing has been associated with the claims file. The Board issued a decision in December 2020 denying the Veteran's claims for service connection for cold injury residuals, to include neuropathy, and service connection for a low back condition. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), and the parties filed a Joint Motion for Remand (JMR) in January 2022. Thereafter, in February 2022, the Court issued an Order granting the JMR and remanding the matters for action consistent with the terms of the JMR. 1. Entitlement to service connection for cold injury residuals, to include neuropathy, is remanded. 2. Entitlement to service connection for a low back condition is remanded. In February 2022, the Court remanded the Veteran's claim based on the JMR stating that the Board erred by relying on the January 2020 VA examination because the examiner failed to adequately account for the lay evidence; inappropriately discounted subjective/lay evidence; and did not provide an adequate rationale. Specifically, the examiner discounted the Veteran's reports of symptoms during and after service because they were not corroborated by service treatment records (STRs); the examiner discounted the Veteran's contemporaneous, in-service report of neuritis on his separation examination as "subjective report only"; and the examiner disregarded the Veteran's report of back symptoms beginning in service and continuing thereafter, noting that the first documentation of back pain in the treatment record was in 2000. Rather than disregard/reject the lay/subjective evidence not corroborated by contemporaneous records, the examiner should have provided opinions that accounted for and addressed the significance of the Veteran's reports. Accordingly, a remand is required for an addendum VA opinion considering this evidence in accordance with the directives in the JMR. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Return the record to the VA examiner who conducted the January 2020 cold injury residuals VA examination. The record, JMR, and a copy of this Remand must be made available to the examiner. If the January 2020 examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following review of the file, and the remand, the examiner is to address the following: (a.) Is it at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that the Veteran has cold injury residuals that had onset in service, or within one year of his separation from service, or are otherwise related to service? In rendering this opinion, the examiner is asked to specifically address the Veteran's contentions that he has cold injury residuals as a result of exposure to extreme sub-freezing weather in Germany (cold weather warfare training and maneuvers and drove trucks with no heat). Please discuss the neuritis and cramps in legs documented in the Veteran's report of medical history in his STRs; the Veteran's contention that he had frost bite and hand/leg pain in service (diagnosed with frostbite, hand cracking and bleeding, unable to close hands, and difficulty shifting truck gears); and his contention that he had hand/leg pain post-service. The examiner is also asked to specifically address the private opinions from Dr. Singh and Dr. Quinones and the October 2013 private medical records documenting polyradiculopathic changes with multiple nerve root irritation likely related to advanced degenerative joint disease of the spine, right-sided tarsal tunnel syndrome, and small sensory fibers neuropathy, with exposure to extremely cold temperature while in service as likely a contributing factor to the current presentation. (b.) Please specifically discuss the Veteran's reports that he suffered a cold injury in service and that his injury manifested as pain in his hands and legs and cracking on his hands; and his reports that he went for treatment but was told that nothing could be done; he self-medicated with Vaseline. Rather than disregard/reject the lay/subjective evidence not corroborated by contemporaneous records, the examiner should provide an opinion that accounts for and addresses the significance of the Veteran's reports. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Return the record to the VA examiner who conducted the January 2020 back (thoracolumbar spine) condition VA examination. The record, JMR, and a copy of this Remand must be made available to the examiner. If the January 2020 examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following review of the file, and the remand, the examiner is to address the following: (a.) Is it at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that the Veteran has a low back condition that had its onset in service, or within one year of his separation from service, or is otherwise related to service? In rendering this opinion, the examiner is asked to specifically address the Veteran's contentions that he has a low back condition related to poor vehicle suspension which caused him to feel every bump and bounce around in his seat and that cold weather caused further injury to his back. The examiner is also asked to specifically address the Veteran's contention that he first experienced low back pain in service and it continued thereafter, his wife's testimony that the Veteran has always had back pain since she's known him, and the Veteran's contention that he has a low back condition related to heavy lifting. (b.) Please specifically discuss the Veteran's reports that after heavy lifting and being bumped around while driving his truck, he noticed back pain, found months after he entered service; at first he worked through his back pain, despite constant pain, but eventually was treated by a medic and given pills that did not help; the condition persisted post service and he medicated with Advil and went to a chiropractor for adjustments; he went to physical therapy and chiropractic care in the past and his doctors wanted to perform surgery on him, but he refused; and his wife's report that the Veteran's pain his been continuous. Rather than disregard/reject the lay/subjective evidence not corroborated by contemporaneous records, the examiner should provide an opinion that accounts for and addresses the significance of the Veteran's/ Veteran's wife's reports. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.