Citation Nr: 1300995	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  10-31 699	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Whether there is new and material evidence to reopen a claim for service connection for residuals of cold injury to the hands.

2.  Whether there is new and material evidence to reopen a claim for service connection for residuals of cold injury to the feet.

3.  Whether there is new and material evidence to reopen a claim for service connection for an eye disorder, including photophobia and dry eye due to cold injury and/or snow blindness.

4.  Entitlement to service connection for residuals of cold injury to the hands.

5.  Entitlement to service connection for residuals of cold injury to the feet.

6.  Entitlement to service connection for an eye disorder, including photophobia and dry eye due to cold injury and/or snow blindness.

7.  Entitlement to service connection for residuals of cold injury to the face.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty in the military from January 1951 to January 1954, so during the Korean Conflict.

This appeal to the Board of Veterans' Appeals (Board) is from a November 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied a claim of entitlement to service connection for residuals of cold injury to the face and determined there was not new and material evidence to reopen previously denied, unappealed, claims of entitlement to service connection for residuals of cold injuries to the hands and feet and for an eye condition.

But irrespective of what the RO decided concerning whether there is new and material evidence to reopen these latter claims, so, too, must the Board make this threshold preliminary determination before proceeding further because this initial determination affects the Board's jurisdiction to consider the underlying merits of these claims.  See Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted).  See also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the Veteran's previously and finally denied claims); Butler v. Brown, 9 Vet. App. 167, 171 (1996); and VAOPGCPREC 05-92 (March 4, 1992).

Unlike the RO concluded, however, the Board finds there is indeed new and material evidence concerning these claims, so they are being reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).  But rather than immediately readjudicating these claims on their underlying merits, the Board instead is remanding them to the RO via the Appeals Management Center (AMC) for further development and consideration.  See Hickson v. Shinseki, 23 Vet. App. 394 (2010) (Generally, when the Board reopens a claim but the RO did not, the claim must be remanded for RO consideration of the claim on its underlying merits unless there is a waiver from the Appellant or no prejudice would result from the Board's immediate readjudication of the claim).  The Board also is remanding the remaining claim of entitlement to service connection for residuals of cold injury to the face.

The Board has advanced this appeal of these claims on the docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  In an unappealed January 2004 decision, the RO considered and denied prior petitions to reopen the claims of entitlement to service connection for residuals of cold injury to the hands and feet and for an eye condition characterized as photophobia due to snow blindness.

2.  In a more recent May 2007 decision that also was not appealed, the RO again denied the petition to reopen the claim of entitlement to service connection for an eye condition characterized as photophobia due to snow blindness, as well as a petition to reopen a claim of entitlement to service connection for residuals of cold injury to the lower extremities.

3.  Additional evidence received since those January 2004 and May 2007 decisions, however, has not been previously considered, is not cumulative or redundant of evidence that has been, and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate these claims and raises a reasonable possibility of substantiating them.


CONCLUSIONS OF LAW

1.  The January 2004 and May 2007 rating decisions, since not appealed, are final and binding decisions based on the evidence then of record.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012).

2.  But there is new and material evidence since those decisions to reopen these claims of entitlement to service connection for residuals of cold injuries to the hands and feet and for an eye condition.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified in part at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created and codified in part at 38 C.F.R. § 3.159.  The VCAA eliminated the well-grounded claim requirement and enhanced VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim, including in terms of apprising the claimant of whose specific responsibility, his versus VA's, it is for obtaining this supporting evidence.  Also, ideally, VCAA notice should be provided prior to initially adjudicating a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  As well, it should advise the claimant of the "downstream" disability rating and effective date elements of the claim, in the event service connection is eventually granted.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

Here, though, since the Board is reopening the claims, and then further developing them on remand before readjudicating them on their underlying merits, there is no need to discuss at this point whether there has been compliance with the 
duty-to-notify- and-assist provisions of the VCAA.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002).  This is better determined once the additional development of the claims on remand has been completed. 

Moreover, since the Board is reopening the claims, there is no need to discuss whether there has been compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006), in terms of notifying the Veteran of the evidence necessary to substantiate the element or elements of the claims that were found insufficient in the previous denials.  Kent, 20 Vet. App. at 10-11; see also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial).  This is because the Board is reopening the claims, regardless, so irrespective of any Kent concerns.

Governing Statutes, Regulations and Precedent Cases Regarding Petitions to Reopen Previously Denied, Unappealed, Claims

Because in January 2004 the RO previously considered and denied a prior petition to reopen the claims of entitlement to service connection for residuals of cold injuries to the hands and feet, and for an eye condition, and more recently in May 2007 again denied a petition to reopen the claim for service connection for the eye condition, as well as for cold injury to the lower extremities, and since the Veteran did not initiate, much less perfect, an appeal of either of those earlier decisions, they are final and binding on him based on the evidence then of record.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.

If, however, there is new and material evidence since those decisions, the Board must reopen the claims and review their former dispositions.  38 U.S.C.A. § 5108.

In making this determination of whether there is new and material evidence to reopen the claim, the Board considers the evidence submitted or otherwise obtained since the last final and binding denial of the claim, irrespective of whether that denial was on the underlying merits or, instead, a prior petition to reopen the claim.  See Evans v. Brown, 9 Vet. App. 273 (1996).

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

If VA determines there is new and material evidence, it may then proceed to evaluate the merits of the claim on the basis of all the evidence of record, but only after ensuring the duty to assist has been satisfied.  See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the analysis set forth in Elkins v. West, 12 Vet. App. 209 (1999)), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000)).  This second step becomes applicable only when the preceding step is satisfied.  See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999).

As already explained, in determining whether evidence is new and material, VA must review all of the evidence received since the last final and binding decision to determine whether the claim may be reopened.  See Hickson v. West, 12 Vet. App. 247, 251 (1999).  And for the limited purpose of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence in question will be presumed credible.  See Justus v. Principi, 3 Vet. App. 510 (1992).  See also Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam) (holding that the "presumption of credibility" doctrine continues to be binding precedent).  This presumption, however, only applies when making a determination as to whether the evidence in question is new and material.  It does not apply when making a determination as to the ultimate credibility and weight of the evidence as it relates to the merits of the claim.  Essentially, then, the presumption of credibility "dissolves"" once the claim is reopened and decided on the merits.  See also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").

Analysis

The evidence of record at the time of the RO's January 2004 decision that previously considered and denied the petitions to reopen the claims of entitlement to service connection for residuals of cold injuries to the hands and feet and for an eye condition included the Veteran's service treatment records (STRs), post-service private and VA medical records, and his personal statements and testimony alleging continuity of symptoms since service.

His STRs dated from November to December 1952 show he was diagnosed with and treated for cold injury (frostbite) to his feet that was causing pain, tingling and numbness in these extremities.  These records also show that injury was precipitated by his exposure to extremely cold or frigid weather during battalion testing in Vilsek, Germany, in November 1952.  His military since had ended in January 1954.

Since his original claim of consequent entitlement to service connection a relatively short time later, in 1958, he continually had claimed that he was exposed to extremely cold temperatures during his active military service and resultantly, ever since, had experienced ongoing problems with his hands, feet and eyes.  He also had testified concerning this, making these same allegations, during a February 1988 hearing before a Member (Veterans Law Judge) of the Board.


The post-service private and VA medical records from January 1963 to July 2003 reflected that he had continually reported to his treatment providers being exposed to extremely cold temperatures while in the military and resultantly sustaining cold injuries to his hands and feet and eye-related problems, including especially photophobia and dry eye.  These records also show various modalities of treatment and diagnoses, including:  poor eyesight, numbness and tingling in the feet, pain in the feet, left foot callus, right foot corn, athlete's foot, fungal infection of the feet, dyshidrotic eczema of the feet, dry eyes, mild peripheral neuropathy, dermatitis of the hands, muscular and joint pains, reactive arthritis, and a rash on the hands.

During a July 2003 VA examination, the examiner concluded that, while there was no actual frostbite, the symptoms the Veteran complained of with the history of pain and continued intolerance of the cold would indicate a reaction to extreme cold.  Therefore, the examiner found that the hospitalization while in service would indicate the Veteran did have some intolerance to cold, and along with his wearing stockings to bed at night and his complaints of symptoms being worse during cold weather, these were as likely as not arthritic symptoms following extreme cold temperature over a prolonged period of time.  That examiner also found that the photophobia was probably related to snow blindness for which the Veteran was treated for several weeks.  

The evidence of record at the time of the more recent May 2007 RO decision that again denied the petition to reopen the claim for service connection for an eye condition (claimed as photophobia due to snow blindness), and for residuals of cold injury to the lower extremities, included the STRs, post-service private and VA medical records, and the Veteran's lay statements and hearing testimony described above.  In addition, VA outpatient treatment records from March 2005 to April 2007 and private electromyography (EMG) and nerve conduction velocity (NCV) tests from September 2006 and April 2007 were also of record.


The VA outpatient treatment reports from March 2005 to April 2007 show the Veteran's continued complaints to his treatment providers that he was exposed to extremely cold temperatures while in service, consequently sustained cold injuries, and that ever since he had had problems with his hands, feet and eye, including especially photophobia and dry eye.  These records also show he was variously treated for and diagnosed with tingling in his fingers, numbness, pain and tingling in his thumbs, onychomycosis of his left great toe with pain, possible peripheral neuropathy and photophobia for 50 years, so dating back to his military service.

The private EMG and NCV testing from September 2006 and April 2007 reflect findings of carpal tunnel syndrome on the right and peripheral neuropathy of the lower extremities.  

Thus, the new evidence submitted since the January 2004 RO decision includes the VA outpatient treatment records from March 2005 to April 2007 and private EMG and NCV tests from September 2006 and April 2007.  The still additional evidence submitted even since the more recent May 2007 RO decision includes a December 1977 VA psychiatric treatment report, private and VA medical records from July 1997 to December 2011, and lay statements from friends of the Veteran.

The December 1977 VA psychiatric report reflects that the Veteran complained of pain in his extremities during cold weather.

The VA outpatient treatment reports from July 1997 to July 2011 indicate he continued to report a history of cold-weather exposure and consequent frostbite during his active military service, with resultant foot- and eye-related symptoms ever since.  He also continued to be treated for and diagnosed with possible peripheral neuropathy, dry eyes and cataract, mycotic nails and hyperkeratosis of his feet.

In a May 2009 signed statement, a private physician opined that the Veteran's current eye condition, specified as dry eye and cataract, was more likely than not related to an injury, a disease, or an event occurring during his military service, so presumably referring to his cold-weather injuries.

In March 2010, lay statements were furnished by the Veteran's friends, including a neighbor J.C., the former manager of the building in which the Veteran resided V.L.G., and the owner of the building in which the Veteran resided, T.L.C.  J.C. attested that he had known the Veteran for about 30 years and that he had always had severe pain in his hands, feet, back and in his nose at times.  V.L.G. and T.L.C. indicated they each had known the Veteran for approximately 20 years and, in that time, had witnessed his difficulty with walking and the pain and swelling of his hands, legs, feet and back.

An April 2010 VA outpatient treatment report reflects that the Veteran complained of having peeling of the skin on his hands, tingling in his fingertips, and a burning sensation in his feet.  Frostbite neuropathy was diagnosed.

In a December 2011 signed statement, a private physician opined that the Veteran's current medical condition, specified as leg and foot pain and peripheral nerve disease, was possibly related to an injury, a disease, or an event occurring during his military service.

In Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim.  Id., at 1363.

Also, since the RO's most recent consideration of the petition to reopen these claims in the November 2009 decision that precipitated this appeal, the Court decided the case of Shade v. Shinseki, 24 Vet. App. 110 (2010).  In Shade, the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id., at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability that in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination. 

In light of these precedent cases, the Board finds that the newly received evidence, when considered in conjunction with the previous evidence of record, presents a more complete picture of the origin of the Veteran's claimed disabilities and relates to unestablished facts necessary to substantiate his claims for these disabilities.  In particular, this evidence includes his and his friends' lay statements and testimony attesting that he has experienced continuous symptoms like pain and numbness in his hands and feet for the past 20 to 30 years, so dating back to his cold injuries in service.  Equally, if not more, significant are the May 2009 and December 2011 private opinions indicating a likely relationship or correlation between the Veteran's claimed disabilities and the cold injuries he sustained in service.  There also is the April 2010 VA examiner's diagnosis indicating the tingling in the Veteran's fingertips and burning sensation in his feet are associated with frostbite neuropathy, so the result of cold-weather injury.  This newly received evidence, then, is not cumulative or redundant of the evidence of record at the time of the prior final and binding decisions in January 2004 and May 2007 and raises a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for residuals of cold injuries to his hands and feet and for an eye condition.  Therefore, these claims are reopened.  See 38 C.F.R. § 3.156(a).



ORDER

As there is new and material evidence, the claims of entitlement to service connection for residuals of cold injuries to the hands and feet, and for an eye condition, are reopened subject to the further development of these claims on remand.


REMAND

Although the Board sincerely regrets the further delay that inevitably will result from remanding, rather than immediately readjudicating, these claims, it is necessary to ensure they are fully developed and receive all due consideration.

The duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim.  In claims for disability compensation, it requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision.  38 C.F.R. § 3.159(c)(4).  A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that a Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease.  38 C.F.R. § 3.159(c)(4).  See also 38 U.S.C.A. § 5103A(d)(2).

The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.)

The Board sees that, since his original claim for service connection in 1958, so virtually dating back to his service, the Veteran has continually maintained that he was exposed to extremely cold temperatures during his service, resultantly sustained cold-weather-related injuries, and consequently has had ongoing problems with his hands, feet and eyes ever since.  He also testified under oath concerning this during a February 1988 hearing before the Board.

His military personnel records and STRs confirm he was exposed to extremely cold weather during battalion testing in Vilsek, Germany, in November 1952 and resultantly diagnosed with and treated from November to December 1952 for consequent cold injury (frostbite) that was causing pain, tingling and numbness in his feet.

Private and VA medical records from January 1963 to December 2011 reflect that he continually reported to his treatment providers that he was exposed to extremely cold temperatures while in service and resultantly had sustained cold injuries to his hands, feet and eye, with consequent problems, including photophobia and dry eye, ever since.  In fact, his report of this history was earliest noted in a January 1963 private treatment report, within nine years of his separation from active service, wherein he stated that he had a history of frostbite in 1952 and still had to walk on crutches and that his then current symptoms included poor eyesight, pain in his right arm, poor vision, a preference of darkness to light, and pain in his foot with pus and blood.  These records also confirm he was variously treated for and diagnosed with:  poor eyesight, numbness and tingling in his feet, pain in his feet, left foot callus, right foot corn, athlete's foot, fungal infection of the feet, dyshidrotic eczema of the feet, dry eyes, mild peripheral neuropathy, dermatitis of the hands, muscular and joint pains, reactive arthritis, a rash on the hands, tingling in the fingers, numbness, pain and tingling in the thumbs, onychomycosis of the left great toe with pain, possible peripheral neuropathy, photophobia for 50 years, dry eyes, cataract, mycotic nails, hyperkeratosis of the feet, and frostbite neuropathy.  

During a July 2003 VA examination, the examiner concluded that, while there was no actual frostbite, the symptoms the Veteran complained of with the history of pain and continued intolerance of the cold would indicate a reaction to extreme cold.  Therefore, the examiner found that the hospitalization while in service would indicate the Veteran did have some intolerance to cold, and along with his wearing stockings to bed at night and his complaints of symptoms being worse during cold weather, these were as likely as not arthritic symptoms following extreme cold temperature over a prolonged period of time.  That examiner also conceded the photophobia was probably related to snow blindness for which the Veteran was treated for several weeks.  

Private EMG and NCV testing from September 2006 and April 2007 reflect findings of carpal tunnel syndrome on the right and peripheral neuropathy of the lower extremities.  

In a May 2009 signed statement, a private physician found that, in his opinion, the Veteran's current eye condition, specified as dry eye and cataract, was more likely than not related to an injury, a disease, or an event occurring during his military service, so presumably referring to the claimed cold-weather injuries.

In March 2010 lay statements, the Veteran's friends, J.C., V.L.G. and T.L.C., attested they had known him for approximately 20 to 30 years and, in that time, had all witnessed his symptoms of severe pain in his hands, legs, feet, and back, as well as pain in his nose at times, plus swelling in these joints and difficulty with walking.  

An April 2010 VA outpatient treatment report reflects that the Veteran complained of having peeling of the skin on his hands, tingling in his fingertips and a burning sensation in his feet.  The diagnosis was frostbite neuropathy.


In a December 2011 signed statement, a private physician found that, in his opinion, the Veteran's current medical condition, specified as leg and foot pain and peripheral nerve disease, was possibly related to an injury, a disease, or an event occurring during his military service, so again presumably referring to his 
cold-weather injuries.  

Hence, there is indication of relevant cold-weather injury in service, suggestion of continuous symptoms ever since, and of an etiological relationship or correlation between these now claimed disabilities and that cold-weather injury in service.  Thus, the Board is obtaining a medical opinion on this determinative issue of causation.  McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1276 (2010).  

Also, as the record reflects the Veteran continues to receive ongoing treatment for his claimed disabilities, including apparently from VA, these additional records must be obtained and considered.  38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c).  See also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive, if not actual, possession of the agency since generated and maintained within VA's healthcare system and, therefore, must be obtained if relevant or potentially determinative of the claim).

Accordingly, these claims are REMANDED for the following additional development and consideration:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Obtain and associate with the claims file all pertinent medical records the Veteran adequately identifies that have not been previously obtained and considered, including especially those concerning all VA medical evaluation or treatment he has received since 2011.

If the records identified are not in the possession of a Federal department or agency, then the attempts to obtain them are governed by 38 C.F.R. § 3.159(c)(1), whereas subpart (c)(2) controls if they are.  Also appropriately notify the Veteran if unable to obtain any identified records.  38 C.F.R. § 3.159(e)(1).

2.  Upon receipt of all additional records, schedule appropriate VA compensation examinations of the Veteran's hands, feet, and eyes to:

(a) first clarify all current diagnoses.

(b) And for all current diagnoses, including for any relevant diagnoses made since the filing of these claims (see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007)), the examiners are then asked to provide medical nexus opinions concerning the likelihood (very likely, as likely as not, or unlikely) any of these current diagnoses is the result of the cold-weather injury (i.e., frostbite) the Veteran sustained during his military service, including in November 1952 or thereabouts.

So in making these determinations, it is essential the examiners consider the relevant evidence in the claims file, including as discussed in this decision and remand.

The term "as likely as not" means at least 50-percent probability.  It does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it.

The examiner must discuss the medical rationale of the opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file.

If an opinion cannot be expressed without resorting to mere speculation, the examiner must discuss why such is the case.  He/she therefore, as an example, must indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiologies of these disabilities at issue or because of some other reason (e.g., there are several possible etiologies with none more prevalent than another).  So, in other words, merely saying he/she cannot comment will not suffice.  See Jones v. Shinseki, 23 Vet. App. 382 (2010).

The examiner must bear in mind that the Veteran is competent to say he has experienced relevant symptoms (e.g., pain, tingling, numbness in his hands and feet, etc.) since his claimed cold-weather injury in service, indeed, even absent indication of actual treatment.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).  He also is competent to say what occurred during his service because his firsthand knowledge of a factual matter is competent.  See Washington v. Nicholson, 19 Vet. App. 363 (2005).  Moreover, when, as here, a condition was "noted" during the Veteran's service, as his cold weather or frostbite injury was from November to December 1952, he need 

only show continuous symptoms since, not continuous treatment to satisfy the essence of 38 C.F.R. § 3.303(b) regarding continuity of symptomatology.  See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of showing chronicity (i.e., permanency) of disease or injury in service to, in turn, link the currently claimed disability to service.  See also Clyburn v. West, 12 Vet. App. 296, 302 (1999).

The examiners must also bear in mind the Veteran filed his initial claim in 1958, only some four years after his military service had ended in 1954, and has had continuous complaints of relevant symptoms during the many years since.  The Board therefore finds his lay testimony concerning this, not just competent, but also credible so as to ultimately have probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).

There equally must be consideration of the supporting medical nexus evidence already in the file.
3.  Ensure the examiners have responded to the questions posed regarding diagnoses and etiologies.  If not, take corrective action.  38 C.F.R. § 4.2 (2012).  

4.  Then readjudicate the claims on their underlying merits in light of this and all other additional evidence.  For all claims that continue to be denied, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of all remaining claims.

The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs