Citation Nr: 1300262 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-11 307A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of cold weather injuries to the feet. 2. Entitlement to service connection for residuals of cold weather injuries to the feet. 3. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a left knee disability. 4. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a right hip disability. 5. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a low back disability. 6. Entitlement to an increased rating for psoriasis, rated as noncompensable disabling prior to June 14, 2010 and 10 percent disabling thereafter. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to March 1953. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, and a December 2007 rating decision issued by the RO in Atlanta, Georgia. Jurisdiction over the claims file is currently held by the Atlanta RO. In October 2012, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. During the October 2012 hearing, the Veteran testified that he had been diagnosed and treated for arthritis related to service-connected psoriasis. In December 2012, the Veteran also filed a claim for entitlement to an increased rating for service-connected post-traumatic stress disorder (PTSD). Thus, the issues of entitlement to service connection for psoriatic arthritis and entitlement to an increased rating for PTSD have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an increased rating for psoriasis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The claim for entitlement to service connection for residuals of cold weather injuries to the feet was initially denied in an unappealed October 2001 rating decision. 2. The evidence received since the October 2001 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim. 3. The Veteran's residuals of cold weather injuries to the feet are etiologically related to active duty service. 4. The claim for entitlement to service connection for a left knee disability was initially denied in an unappealed August 1984 rating decision. The Veteran made multiple attempts to reopen the claim and was most recently denied in a May 2005 Board decision. 5. The evidence received since the May 2005 Board decision is cumulative and redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claim. 6. The claim for entitlement to service connection for a right hip disability was initially denied in an unappealed August 1984 rating decision. The Veteran made multiple attempts to reopen the claim and was most recently denied in a May 2005 Board decision. 7. The evidence received since the May 2005 Board decision is cumulative and redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claim. 8. The claim for entitlement to service connection for a low back disability was initially denied in an unappealed October 1993 rating decision. The Veteran made multiple attempts to reopen the claim and was most recently denied in a May 2005 Board decision. 9. The evidence received since the May 2005 Board decision is cumulative and redundant of other evidence of record and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen service connection for residuals of cold weather injuries to the feet. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 2. Service connection for residuals of cold weather injuries to the feet is warranted. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 3. New and material evidence has not been received to reopen service connection for a left knee disability. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has not been received to reopen service connection for a right hip disability. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). 5. New and material evidence has not been received to reopen service connection for a low back disability. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims to Reopen A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). Cold Weather Injuries The claim for entitlement to service connection for cold weather injuries was initially denied in an unappealed October 2001 rating decision. The RO found that the Veteran did not have a permanent residual disability due to an incident during service. The Veteran did not appeal the denial of the claim and the October 2001 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). The evidence received since the October 2001 rating decision is sufficient to reopen the claim for service connection for residuals of a cold weather injury to the feet. In support of his claim, the Veteran submitted a July 2003 letter from his private physician opining that the Veteran's chronic extremity pain was secondary to frost bite of the feet. The Veteran also underwent treatment with a private doctor in March 2004 for pain and decreased tibial pulses in the feet related to a history of frost bite in 1952. This medical evidence is new as it was not previously considered and it is also material as it relates to previously unestablished facts in the claim-the presence of a current disability due to an in-service injury. Thus, new and material evidence has been received and reopening of the claim for entitlement to service connection for residuals of a cold weather injury is warranted. Left Knee, Right Hip, and Low Back The Veteran's claims for entitlement to service connection for left knee and right hip disabilities were initially denied in an August 1984 rating decision. At that time, the RO found that the Veteran had no permanent left knee or right hip disabilities. The claim for entitlement to service connection for a low back disability was initially denied in an unappealed October 1993 rating decision. The RO found that there was no evidence of a low back condition during service or competent medical evidence linking the disability to active duty. The Veteran did not appeal the denial of the claims and the August 1984 and October 1993 rating decisions became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Veteran has made several attempts to reopen his claims for service connection for the left knee, right hip, and low back disabilities. He was most recently denied in a May 2005 Board decision. At that time, the Board reopened the Veteran's claims, but found that the weight of the evidence was against a link between the claimed disabilities and service. The evidence received since the May 2005 Board decision includes records of VA and private treatment for arthritis of the left knee, right hip, and low back. This evidence is new as it was not of record at the time of the May 2005 Board decision, but it is not material as it does not relate to an unestablished fact necessary to substantiate the claim. The records merely document ongoing treatment for chronic disabilities of the knee, hip, and back and therefore pertain to the presence of current disabilities, an element of service connection that was already established at the time of the prior denial of the claims. The treatment records do not provide any competent medical evidence of a link between the Veteran's claimed conditions and active duty service and cannot serve to reopen the claims. In support of the claims, the Veteran has also submitted various statements reporting a continuity of knee, hip, and back pain since service. Although the credibility of these statements is presumed in determining whether they are new and material, the Veteran's reports are cumulative and redundant of evidence already of record at the time of the May 2005 Board decision. Similarly, in January 2011 the Veteran submitted several statements from individuals who served on active duty with him in Korea. These buddy statements, while supporting the Veteran's contentions regarding in-service injuries, are duplicative of statements that were part of the record in May 2005. As the record does not contain new and material evidence of a possible link between the Veteran's left knee, right hip, and low back disabilities, reopening of the claims for service connection is denied. Reopened Claim for Service Connection The Veteran contends that service connection is warranted for residuals of cold weather injuries to the feet as they were incurred during his active duty service in Korea. He testified in October 2012 that while serving in Korea he was stranded in a broken down vehicle for several hours in extremely cold conditions. His feet became frost bitten and he has experienced symptoms such as pain and swelling since service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The record clearly demonstrates the presence of a current disability. The Veteran was diagnosed with cold weather injuries of the bilateral feet upon VA examination in May 1999 and has continued to complain of symptoms such as pain and swelling throughout the claims period. X-rays of the feet in October 1995 also demonstrated calcified blood vessels and probable vascular insufficiency. In addition, while service records are negative for evidence of injuries to the feet or treatment for frost bite, the Veteran is considered to competent to report injuries that occurred during active service. The Board finds that the Veteran's testimony regarding his feet is credible and the first and second elements of service connection-a current disability and in-service injury-are therefore established. The Board also finds that the evidence demonstrates a direct nexus between the Veteran's current residuals of cold weather injuries to the feet and active service. He was diagnosed with cold weather injuries of the bilateral feet upon VA examination in May 1999, and although the VA examiner could not link the Veteran's disability to service with certainty, the Veteran's private physician concluded in July 2003 that he experienced chronic extremity pain secondary to in-service frost bite. The Board also notes that the record is completely negative for any other possible etiology for the Veteran's cold weather injuries and the Veteran has reported a credible continuity of symptoms since service. Thus, all elements necessary for establishing service connection are met and the claim for service connection for residuals of cold weather injuries to the feet is granted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). With respect to the Veteran's claim for entitlement to service connection for cold weather injuries to the feet, the Board finds that VA has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to reopen and grant the claim. In the context of claims to reopen, the duty to notify requires that the Secretary look at the bases for the denial in the prior decision and respond with a notice letter that describes what evidence would be necessary to substantiate the element or elements required to establish service connection that were found insufficient in the previous denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In a January 2007 letter, the Veteran was provided notice of the criteria necessary for reopening a previously denied claim. In addition, he was informed of the reason for the prior denials of service connection for the claimed left knee, right hip, and low back disabilities. VA has therefore substantially fulfilled its specific duties to notify with regard the Veteran's claims to reopen. The Veteran was also provided notice in a January 2007 letter fulfilling the requirements of 38 C.F.R. § 3.159(b) for his service connection claims. The January 2007 letter also included notice regarding the disability-rating and effective-date elements of the claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and records of VA and private treatment. Although the Veteran indicated in November 1992 that he would soon receive compensation from the Social Security Administration (SSA), the October 1992 SSA award letter clarified that the compensation was based solely on the Veteran's retirement and not due to disability. Thus, there is no reasonable possibility that records from the SSA are relevant to the Veteran's current claims and their procurement is not required by the duty to assist. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). Additionally, while VA examinations and medical opinions have not been obtained in connection with the current claims to reopen, VA has no duty to obtain medical examinations or opinions because new and material evidence has not been received to reopen the claims. 38 C.F.R. § 3.159(c)(4)(iii) (2012). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER New and material evidence having been submitted, reopening of the claim for entitlement to service connection for residuals of cold weather injuries to the feet is granted. Entitlement to service connection for residuals of cold weather injuries to the feet is granted. New and material evidence not having been submitted, reopening of the claim for entitlement to service connection for a left knee disability is denied. New and material evidence not having been submitted, reopening of the claim for entitlement to service connection for a right hip disability is denied. New and material evidence not having been submitted, reopening of the claim for entitlement to service connection for a low back disability is denied. REMAND The Board finds that additional development is necessary before a decision can be rendered with respect to the claim for an increased rating for psoriasis. The Veteran's skin disorder was last examined in July 2012, but during the October 2012 hearing, the Veteran testified that his psoriasis had worsened and spread to the majority of his body including his eyes, ears, hands, legs, and groin. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Upon remand, the Veteran should be provided a VA skin examination to determine the current severity of his service-connected psoriasis. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. Afford the Veteran a VA dermatological examination with an appropriate examiner to determine the severity of the service-connected psoriasis. If possible, the examination should be conducted during a period when the Veteran is experiencing a flare-up of psoriasis symptoms. The claims file must also be available to the examiner prior to the examination, and the examiner must review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. The examiner should report the percentage of the Veteran's entire body and the percentage of his exposed areas affected by the service-connected skin disability (including during any periods of flare-up if the examination is not conducted during such a period). The examiner should also note any systemic therapy that has been provided for the Veteran's service-connected skin disability during the past 12 month period and the frequency and duration of any such treatment. The examiner should note whether the Veteran experiences flare-ups of his service-connected skin disability and, if so, whether the examination is being conducted during a period of flare-up. The examiner should also note whether there are any specific periods during which any such flare ups occur or whether they are intermittent/unpredictable. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinions. 2. Then, readjudicate the claim for an increased rating for psoriasis. If the benefit sought on appeal is not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs