COLD INJURY RESIDUALS

Summary

The Veteran, a Veteran who served from May 1985 to April 1991, appeals the denial of service connection for right foot frostbite residuals and the remand of his obstructive sleep apnea (OSA) claim. The Veteran asserts that he sustained frostbite to both feet during service in Germany, leading to ongoing pain and swelling. Service treatment records (STRs) from August 1990 confirm treatment for frostbite and ongoing foot trouble, though later records did not associate the overseas treatment notes. The Board noted that while missing service records can be unfortunate, medical nexus evidence is still required. The February 2025 VA examination was deemed inadequate because it lacked diagnostic tests, failed to consider the Veteran's lay statements regarding his symptoms, and provided no nexus opinion. The examiner's findings were also contradictory, attributing pain to pes planus without diagnosing it. Later, November 2025 evidence confirmed a diagnosis of frostbite residuals and granted service connection for the left foot. Given the inadequate VA exam and the later evidence confirming the disability and nexus, the Board found the preponderance of evidence favored the claim for right foot frostbite residuals, granting service connection. The OSA claim was remanded due to the RO's failure to provide adequate notice and conduct necessary development, including obtaining STRs and scheduling a VA examination with a nexus opinion.

Rationale

Service treatment records confirm in-service treatment for frostbite; Inadequate VA examination failed to consider lay statements and provide nexus; Later VA evidence confirmed disability and provided positive nexus

Full Decision Text

Citation Nr: A26024857
Decision Date: 03/19/26	Archive Date: 03/19/26

DOCKET NO. 250910-585999
DATE:  March 19, 2026

ORDER

Entitlement to service connection for right foot frostbite residuals is granted.

REMANDED

Entitlement to service connection for obstructive sleep apnea (OSA) is remanded.

FINDING OF FACT

The Veteran's right foot disability of frostbite residuals is directly related to an in-service injury.

CONCLUSION OF LAW

The criteria for service connection for right foot frostbite residuals have been met. 38 U.S.C. §§ 1110, 1112, 5107 (2024); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2025).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from May 1985 to April 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2025 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the September 2025, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of entitlement to service connection for OSA, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 

Service Connection - Right Foot Frostbite Residuals

The Veteran asserts that he has a disability of the right foot resulting from a frostbite injury sustained during active service. More specifically, the Veteran avers that while stationed overseas in Germany he experienced frostbite of both feet, causing pain and swelling that has continued ever since.

Turning to the evidence of record, the Board notes that service treatment records (STRs) confirm that the Veteran reported being treated for frostbite while on active service in Germany. See August 1990, STR. The August 1990 STR reflects that the Veteran also reported continuing foot trouble resulting from frostbite and reflects that he reported at that time that the treatment notes from his overseas service were not associated with his file. Id. A review of the available STRs of record continues to demonstrate that treatment notes from the Veteran's overseas service have not been associated with the claims file. See 1985-1991, STRs. 

When, as here, service records are lost or missing, through no fault of the Veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (citing Russo v. Brown, 9 Vet. App. 46, 51 (1996)). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, while indeed unfortunate, missing service records does not obviate the need for the Veteran to have medical nexus evidence supporting his claim. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).

In February 2025, the Veteran underwent a VA examination in relation to the instant claim. The Board finds, however, that the examination and resulting report are inadequate.
1 Vet. App. 365, 367 (1991). However, while indeed unfortunate, missing service records does not obviate the need for the Veteran to have medical nexus evidence supporting his claim. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)).

In February 2025, the Veteran underwent a VA examination in relation to the instant claim. The Board finds, however, that the examination and resulting report are inadequate. Aside from X-ray imaging of the right foot, there were no additional diagnostic tests performed. Moreover, despite the Veteran's reporting of ongoing pain and swelling of his feet, the examination report fails to indicate a positive response to those symptoms under "Section III - Signs and Symptoms," signifying the examiner's failure to consider the Veteran's lay reports. See February 2025, VA Examination Report. Furthermore, as the examiner found that there was no present disability (based upon the inadequate testing and failure to consider the Veteran's statements), there was no nexus opinion rendered despite one being requested. Id. Further discrediting the findings within the report, the examiner attributed the Veteran's reported pain to pes planus, but curiously, there was no diagnosis of pes planus within the report. Id. 

Given these discrepancies, the Board finds that the VA examination report of record is inadequate and unreliable. 

Moreover, it is noted that although outside of the evidentiary window for the instant claim, additional VA-generated evidence from November 2025 demonstrates that the Veteran was positively diagnosed with residuals of frostbite of the bilateral feet and granted service connection for residuals of the left foot as it had been separately claimed in September 2025. See November 2025, Rating Decision. 

The Board finds that a remand for additional development would unduly delay the proper adjudication of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution").

In this case, the VA examination was inadequate and resulted in a pre-decisional duty-to-assist error. Later VA-generated records confirm both the presence of a current disability and provide a positive nexus. 

Accordingly, in applying the findings from the later-corrected VA-generated evidence, the Board finds that the preponderance of the evidence weighs in favor of the claim and entitlement to service connection for a right foot frostbite residuals disability is warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 

REASONS FOR REMAND

Service Connection - OSA

In the September 2025, VA Form 10182 giving rise to the instant appeal, the Veteran clearly and unambiguously appealed the issue of the denial of entitlement to service connection for OSA. See September 2025, VA Form 10182. In the rating decision on appeal, the claim was denied based upon a finding that the Veteran did not demonstrate the presence of a current disability. However, the RO failed to undertake any development of the claim at all; including failing to provide notification to the Veteran about the information necessary to submit in support of his claims and notice of his rights in pursuing his claims. See Bryant v. Wilkie,33 Vet. App. 43, 46 (2020); Smith v. Wilkie, 32 Vet. App. 332, 337-38 (2020). There was no request for treatment records and no consideration given to the absence of STRs from the Veteran's period of service in Germany. 

Accordingly, a remand is necessary to afford the Veteran proper due process of his claims, including adequate requests for medical records, and adequate medical examinations based upon an accurate record. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2024); 38 C.F.R. § 3.159 (c)(4)(i) (2025). 

The matter is REMANDED for the following action:

1. Provide the Veteran with legally adequate notice of his rights while pursuing his claim and information needed to support his claim for service connection of OSA.

2. Make reasonable efforts
 of service in Germany. 

Accordingly, a remand is necessary to afford the Veteran proper due process of his claims, including adequate requests for medical records, and adequate medical examinations based upon an accurate record. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2) (2024); 38 C.F.R. § 3.159 (c)(4)(i) (2025). 

The matter is REMANDED for the following action:

1. Provide the Veteran with legally adequate notice of his rights while pursuing his claim and information needed to support his claim for service connection of OSA.

2. Make reasonable efforts to assist the Veteran in obtaining a complete record of STRs, military personnel records, private, and VA treatment reports, and associate them with the electronic claims file.

3. Schedule the Veteran for a VA examination for his OSA disability. The claims file must be made available to and reviewed by the examiner(s). Any indicated tests and studies must be performed.

Based on the examination of the Veteran and a review of the record, the examiner(s) must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's OSA disability had its onset during the Veteran's active service or is otherwise etiologically related to such service, specifically considering the Veteran's lay statements regarding the onset and continuity of his symptoms.

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A complete rationale must be provided for all opinions expressed.

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sutherell, Erienne

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.