Citation Nr: 1304923 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 12-20 739A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to residuals of cold injury. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to residuals of cold injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION 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 Veteran had active service from July 1951 to June 1953. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran submitted a timely appeal with a notice of disagreement in March 2010, a statement of the case was issued in August 2012, and a VA Form 9 was submitted in August 2012. FINDINGS OF FACT 1. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities was denied by the RO in an October 2006 rating decision; the Veteran was notified in writing of the decision, but he did not complete an appeal for this issue within the applicable time limit. 2. In a January 2010 rating decision, the RO determined that the October 2006 rating decision, denying service connection for peripheral neuropathy of the bilateral lower and bilateral upper extremities, was not the product of clear and unmistakable error; the Veteran was notified in writing of the decision, but he did not initiate an appeal for these issues within the applicable time limit. 3. The evidence, pertaining to the Veteran's peripheral neuropathy of the bilateral lower extremities, received since the October 2006 rating decision is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 4. The evidence is in relative equipoise as to whether the Veteran's peripheral neuropathy of the bilateral lower extremities is causally or etiologically related to service, to include as secondary to residuals of cold injury. CONCLUSIONS OF LAW 1. The October 2006 rating decision that denied entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is final. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. §§ 3.105(a), 20.1103 (2012). 2. The evidence received since the October 2006 rating decision is new and material, and the Veteran's claim for service connection for peripheral neuropathy of the bilateral lower extremities is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. Resolving all reasonable doubt in the Veteran's favor, peripheral neuropathy of the bilateral lower extremities is was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting the benefit sought on appeal. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Whether New and Material Evidence Has Been Received to Reopen a Claim for Entitlement to Service Connection for Peripheral Neuropathy of the Bilateral Lower Extremities, to Include as Secondary to Residuals of Cold Injury Notwithstanding determinations by the RO that new and material evidence has been received to reopen the Veteran's claim, it is noted that on its own, the Board is required to determine whether new and material evidence has been presented. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105, to address the question of whether new and material evidence has been presented to reopen a previously denied claim); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). With claims to reopen, "new" evidence is defined as evidence not previously submitted to agency decision makers; and "material" evidence is defined as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 38 C.F.R. § 3.156. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claims sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The record, with respect to this claim, reflects that a claim for service connection for peripheral neuropathy of the bilateral lower extremities was last denied in a rating decision of October 2006. The Veteran did not complete a timely appeal and subsequently the October 2006 rating decision became final. Evans v. Brown, 9 Vet. App. 273, 285 (1996). Moreover, in a January 2010 rating decision, the RO also determined that the October 2006 rating decision, concerning the denial of service connection for peripheral neuropathy of the bilateral lower extremities, was not the product of clear and unmistakable error. As the Veteran did not intiate a timely appeal of the January 2010 rating decision, the doctrine of finality, as enunciated in 38 U.S.C.A. § 7105(c) (West 2002), applies, and thus the October 2006 decision remains final and binding based on the evidence then of record. 38 C.F.R. § 3.105(a). As such, the Veteran's claim for service connection may only be opened if new and material evidence is submitted. In this instance, since the October 2006 rating decision denied the claim on the basis that there was no evidence to confirm that the Veteran was exposed to cold temperatures or that he suffered from residuals of exposure to cold temperatures while in Korea during service, the Board finds that new and material evidence would consist of evidence that the Veteran was exposed to cold temperatures and suffers residuals of such exposure while in Korea or in another country during his service. The evidence received since the October 2006 rating decision consists of numerous records and documents. Among other things, the Veteran stated that he was exposed to cold temperatures while in Japan during his service and that he suffers from residuals of the exposure. See March 2010 statement. The Board must presume the credibility of all newly submitted evidence, including lay evidence, for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Presuming its credibility, the aforementioned lay statement would tend to indicate that the Veteran was exposed to cold temperatures while in Japan during service. A result, the Board finds that this additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to cold injury. See 38 C.F.R. § 3.156(a). The Board determines that the claim is reopened. III. Entitlement to Service Connection for Peripheral Neuropathy of the Bilateral Lower Extremities, to Include as Secondary to Residuals of Cold Injury The claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities has been reopened. The Veteran states he received damage to his bilateral lower extremities as a result of exposure to cold temperatures while serving in Japan as a lineman, where he would repair and replace lines outside. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prevail on the issue of service connection on the merits, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service records were reviewed and indicate the Veteran served time in Japan from March 1952 to August 1952 and October 1952 to January 1953. The Veteran also served time in Korea. The personnel records also indicate that the Veteran was a field wireman. As such, resolving all doubt in favor of the Veteran, the Board finds he was exposed to cold temperatures while performing his military occupational specialty as a lineman while in Japan during service. Post-service records indicate the Veteran sought treatment in November 2007 for "poor circulation" in his legs and feet. The examination revealed sparse hairs on the legs with diminished pinprick on several toes. It was noted that he had cold extremities and the presence of apparent neuropathy. The Veteran was afforded a VA examination in May 2010. The Veteran reported that he had exposure to cold temperature in Japan and subsequently developed numbness and pain in his feet. An examination revealed the Veteran had bilateral lower extremity distal sensory peripheral neuropathy. The examiner opined that it is at least as likely as not that the Veteran's current bilateral lower extremity neuropathy is the same as or is a result of cold weather exposure while stationed in Japan during active duty. The examiner noted that while the service treatment records do not document any cold injury treatments, the Veteran was deployed in a cold weather climate performing outdoor duties. The examiner noted that the constellation of findings on the exam are most consistent with the expected residuals of cold exposure injury of both lower extremities and the Veteran has not been found to have diabetes or vitamin deficiencies which could have been other potential causes of a distal sensory peripheral neuropathy. The Board has also considered the Veteran's arguments in support of his assertions that he suffers peripheral neuropathy of the bilateral lower extremities and that this condition is related to his service, to include his exposure to cold temperatures during service. The Board notes that the Veteran is capable of reporting the observable symptoms of an injury or illness, as well as the length of time those symptoms have persisted. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Service connection for bilateral lower peripheral neuropathy is warranted because the evidence is at least in relative equipoise. The Veteran's lay history of exposure to cold temperatures in Japan is consistent with the information contained in his service personnel file. While there are other VA medical opinions (in December 2005) which were predicated on the Veteran's unconfirmed history of cold exposure while in Korea, the VA medical opinion of May 2010 is now based on an accurate factual premise and thus concludes that the Veteran's peripheral neuropathy is a result of exposure to cold temperatures in Japan, and not due to some other cause such as diabetes or vitamin deficiency. On balance, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current peripheral neuropathy of the bilateral lower extremities is etiologically related to his cold exposure in Japan during service. Upon resolution of every reasonable doubt in the Veteran's favor, the Board determines that service connection is warranted for peripheral neuropathy of the bilateral lower extremities, to include as secondary to residuals of cold injury. The appeal is granted. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to residuals of cold injury; to this extent, the appeal is granted. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to residuals of cold injury, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs