Citation Nr: 23001086 Decision Date: 01/09/23 Archive Date: 01/09/23 DOCKET NO. 15-24 133 DATE: January 9, 2023 ORDER Entitlement to service connection for residuals of cold injury to the bilateral fingers and toes is denied. FINDING OF FACT The Veteran has not been shown to have residuals of a cold injury to the bilateral fingers and toes that manifested in service or that are otherwise related to her military service. CONCLUSION OF LAW Residuals of a cold injury to the bilateral fingers and toes were not incurred in active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2010 to February 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in July 2018. A transcript of the hearing is of record. The Board remanded the case for additional development in June 2019, September 2020, and April 2022. The case has since been returned to the Board for appellate review. Law and Analysis The Board most recently remanded the case for a VA examination and medical opinion to determine the nature and etiology of any cold injury residuals affecting the bilateral fingers and toes that may be present. Thereafter, the agency of original jurisdiction (AOJ) requested an examination, and a letter was sent to the Veteran notifying her of the appointment. However, a record indicates that she failed to report for the examination in June 2022. The AOJ subsequently sent a letter to the Veteran in July 2022 asking her to advise VA is she was available to attend an examination for residuals of cold injury to the bilateral fingers and toes. Although there was no documented response, the AOJ rescheduled the Veteran for another examination in August 2022, but a record again shows that she failed to report for the appointment. In September 2022, the AOJ sent a copy of a supplemental statement of the case (SSOC) to the Veteran and her representative. The SSOC noted that the Veteran had not shown for VA examinations. The Veteran and her representative have not asserted that she did not receive notice of the scheduled examination. Nor have they requested that the examination be rescheduled or provided good cause. When a claimant fails to participate in a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the claimant lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 568 (2008). As noted above, the Veteran and her representative have not challenged the fact that she failed to report for an examination, did not request that the examination be rescheduled, and did not provide good cause, despite the September 2022 SSOC noting that he had not shown for a scheduled VA examination. Under these circumstances, the Board finds that the Veteran's failure to appear was without good cause. The "duty to assist is not always a one-way street," and the Veteran has an obligation to actively participate in the retrieving of any information pertinent to her claim, to include attending scheduled VA examinations. A veteran is expected to cooperate in the efforts to adjudicate the claim, and the failure to do so subjects him or her to the risk of an adverse adjudication based on an incomplete and underdeveloped record. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). Given the facts of this case, the Board finds that no further development action is needed. The AOJ attempted to provide the Veteran with an examination, but she did not report. As a result, the Board must decide the issue based on the evidence of record. 38 C.F.R. § 3.655(b). In reaching this conclusion, the Board acknowledges the holding in Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013), that there is no presumption of regularity in a case in which the notification letter for the scheduling of a VA examination is not of record. In this case, the claims file does contain a letter notifying the Veteran of the scheduled examination in June 2022, but not for the August 2022 examination. Nevertheless, the Board finds that the facts in this case are distinguishable from the facts considered in Kyhn. In Kyhn, the appellant expressly argued that he failed to attend the scheduled VA examination because he was not provided advance notice, whereas, in this case, the Veteran and her representative have not made such an argument, despite the September 2022 SSOC relying on a finding that she did not report for a scheduled examination. Moreover, as previously noted, there is a notice letter of record regarding the June 2022 examination. Neither the Veteran nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for residuals of cold injury to the bilateral fingers and toes. The Veteran has claimed that she developed frostbite and discolored skin from extreme cold exposure during service. See September 2010 statement; July 2018 hearing transcript. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of frostbite or a cold injury. A February 2010 emergency department record also noted that her skin was normal. The Veteran was afforded a VA general medical examination in November 2010 during which the examiner noted the reported history of a cold injury in service resulting in discolored skin. A physical examination revealed thick, rough, blotchy-brown skin on her hands and feet. However, no medical opinion was requested. The Veteran was also documented as having alopecia areata and papular dermatitis at that time. The Veteran continued to complain of blotchy skin and was prescribed a topical skin cream. See September 2012 VA treatment records. She testified during the July 2018 hearing that she continues to have skin problems on her fingers and toes and uses two different topical creams. However, subsequent medical records show that her skin was normal. For these reasons, the Board remanded the issue in September 2020 for a VA examination and medical opinion. Thereafter, the Veteran was afforded a VA examination in connection with the claim in October 2021. The examiner noted the reported history of exposure to cold during service and her skin tearing off and that the Veteran still complained of pain in her hands and feet. However, the examiner found no current clinical findings, signs, and/or symptoms to support a medical diagnosis of cold injuries to the bilateral fingers and toes. However, the examiner did not discuss the November 2010 findings, as directed in the September 2020 remand, or explain whether a previous diagnosis of a cold injury to the skin of the bilateral fingers and toes was misdiagnosed or had resolved. Therefore, the Board found that an additional VA medical opinion was needed in the April 2022 remand. Nevertheless, as previously discussed, the Veteran did not report examinations scheduled in June 2022 and August 2022. Nor has she requested that an examination be rescheduled or provided good cause. Thus, the case must be adjudicated based upon the evidence of record. 38 C.F.R. § 3.655(b). However, the available evidence does not relate any disorder to the Veteran's military service. Indeed, the Board had remanded the case for that specific reason. See Turk v. Peake, 21 Vet. App. 565, 568 (2008) (when a claimant does not participate in a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the claimant lacked good cause to miss the scheduled examination). Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the diagnosis and etiology of the claimed disorder, falls outside the realm of common knowledge of a lay person, particularly given the other diagnoses of skin disorders and the indication that prior symptoms may have resolved. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the evidence of record does not persuasively show that the Veteran has residuals of cold injury to the bilateral fingers and toes that are related to her military service. Therefore, the Board concludes that service connection is not warranted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.