Citation Nr: 0812244 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 06-01 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for degenerative arthritis of the cervical spine. 2. Entitlement to service connection for degenerative arthritis of the lumbar spine. 3. Entitlement to service connection for psoriasis. 4. Entitlement to service connection for residuals of cold weather injuries to the lower extremities. 5. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran served on active duty from February 1953 to January 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the veteran's application to reopen claims of service connection for psoriasis and degenerative arthritis of the cervical and lumbar spine, as well as new service connection claims for bilateral hearing loss and cold injury residuals. The veteran perfected a timely appeal of this determination to the Board. On his January 2006 substantive appeal, the veteran requested the opportunity to testify at a videoconference hearing conducted before a Veterans Law. However, in August 2007 correspondence dated, his representative indicated that the veteran wished to forego his Board hearing. As such, the Board finds that the veteran's request for a Board hearing has been withdrawn. See Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). In a January 7, 2000, decision, the Board denied the veteran's claims of service connection for degenerative arthritis of the cervical and lumbar spine and psoriasis on the basis that they were not well grounded under the law then in effect. Pursuant to 38 U.S.C.A. § 7103(a) (West 2002) and 38 C.F.R. § 20.1102(a) (2007), a decision of the Board is final on the date stamped on the face of the Board's decision, i.e., January 7, 2000, unless the Chairman orders reconsideration. Hayslip v. Principi, 364 F.3d 1321 (Fed. Cir. 2004). Section 7 of the Veterans Claims Assistance Act of 2000 (VCAA), however, provides that if a claim that was denied as not well grounded became final between July 14, 1999, and November 9, 2000, it may be readjudicated under the VCAA "as if the denial or dismissal had not been made," provided a timely request is filed by the claimant or on the Secretary's own motion. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1343-44 (Fed. Cir. 2003). If there was a request made by the claimant, that request had to be filed by the claimant no later than two years after the date of the enactment of the VCAA, i.e., not later than November 9, 2002. Here, a review of the claims folder shows that in August 2002, the veteran filed an application to reopen his claims for service connection for degenerative arthritis of the cervical and lumbar spine as well as psoriasis. Because this request was made prior to November 9, 2002, his degenerative arthritis of the cervical and lumbar spine and psoriasis claims must readjudicated under the VCAA without regard to the finality of the January 7, 2000, Board decision. In this regard, the Board notes that the General Counsel of VA has recognized that if a timely request for readjudication has been made under section 7 (b) of the VCAA, the first adjudication of the claim must be made by the agency of original jurisdiction, and if the veteran wishes to appeal, he or she must file a timely notice of disagreement with the decision, even when, as here, the original decision had been appealed. Further, when a claim is readjudicated under the VCAA, the Board need not vacate any prior decision on the claim. VAOPGCPREC 03-2001, 66 Fed. Reg. 33,311 (2001). In light of the above, his degenerative arthritis of the cervical and lumbar spine and psoriasis claims have remained pending since October 1997. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran and his representative assert that service connection is warranted for the veteran's degenerative arthritis of the cervical spine, degenerative arthritis of the lumbar spine, psoriasis, residuals of cold weather injuries to the lower extremities, and bilateral hearing loss. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The VCAA also requires that an examination be provided where VA determines it is necessary to decide the claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In this vein, the Court held in McLendon v. Nicholson, 20 Vet. App. 79 (2006), that in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Board notes that VA has a heightened duty to assist in this case because the service medical records are not available. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), aff'd 455 F.3d 1346 (Fed. Cir. 2006); Russo v. Brown, 9 Vet. App. 46, 51 (1996). On remand, the RO must determine whether the veteran was exposed to cold weather conditions during service in light of his contentions and the reports in the lay statements of record, which support his account of such exposure. In this regard, the Board observes that VA recognizes numerous conditions as the chronic effects of cold exposure as set out in Veterans Benefits Administration Manual M21- 1MR, part III, Subpart iv, Chapter 4, Section E (Manual), which provides that injury due to exposure to extremely cold temperatures causes structural and functional disturbances of small blood vessels; cells; nerves; skin, and bone, and that the physical effects of exposure may be acute or chronic, with immediate or latent manifestations. Indeed, the Manual states the chronic effects of exposure to cold include: Chronic pain of the causalgia type; abnormal skin color or thickness; cold sensitization; joint pain or stiffness; Raynaud's phenomenon; weakness of hands or feet; night pain; weak or fallen arches; edema; numbness; paresthesias; breakdown or ulceration of cold injury scars; and vascular insufficiency, indicated by edema, shiny, atrophic skin, or hair loss. The Manual also reflects that VA recognizes that the chronic effects of exposure to the cold include an increased risk of developing conditions such as: Peripheral neuropathy; squamous cell carcinoma of the skin, at the site of the scar from a cold injury; and arthritis or other bone abnormalities, such as osteoporosis, or subarticular punched-out lesions. In light of the above, in order to determine the etiologies of the veteran's degenerative arthritis, psoriasis, gangrene, and bilateral hearing loss, and to comply with the duty to assist, the Board finds that a remand is needed to secure relevant VA examinations. Accordingly, the case is REMANDED for the following action: 1. The RO should secure all of the veteran's VA treatment records dated after February 2007, if any, from the Lexington VAMC: Leestown Division in Lexington, Kentucky. 2. After the above step has been completed, afford the veteran an appropriate VA examination to determine whether he has any cervical spine, low back, skin, or lower extremity disability that may be related to service, to include his reported exposure to cold weather conditions. The examiner should review the claims file and undertake any studies deemed appropriate. The examiner must opine as to whether it is at least as likely as not that the veteran has a neck, low back, skin or lower extremity condition that is related to service. In offering this assessment, the examiner should comment on the provisions of Veterans Benefits Administration Manual M21-1MR, part III, Subpart iv, Chapter 4, Section E, which are reproduced above. The examiner should also acknowledge the veteran's report of a continuity of symptomatology since service, and the lay statements of record corroborating the veteran's account of exposure to cold weather conditions. The examiner should set forth the complete rationale for any conclusions in a legible report. 3. The veteran should also be afforded a VA audiology examination to determine the etiology of any bilateral hearing loss found to be present. The claims folder must be made available and reviewed by the examiner. Any indicated tests, including an audiological evaluation, must be performed. Thereafter, the examiner must opine as to whether it is as least as likely as not that any hearing loss is related to the veteran's active duty service. A complete rationale for all opinions should be provided. 4. After the development requested above has been completed to the extent possible, the RO should readjudicate the veteran's claims. If any benefit sought on appeal remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).