Citation Nr: 1309025 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 10-48 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of service connection for cold injury residuals. 2. Entitlement to service connection for cold injury residuals. REPRESENTATION Appellant represented by: Byron Simpson, Esquire WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to June 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen the Veteran's claim for service connection for residuals of frozen feet. The Veteran testified before the undersigned Veterans Law Judge in January 2012 at a Travel Board Hearing. A transcript of that testimony is of record. In connection with the hearing, the Veteran submitted additional evidence, along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304(c) (201e). The issue of entitlement to service connection for cold injury residuals 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. In a January 1988 rating decision, the RO denied the Veteran's claim for residuals of frozen feet; after the Veteran was notified of the adverse determination and of his procedural and appellate rights, he did not appeal the rating decision and no new and material evidence was received by VA within one year from the date that the RO mailed notice of the determination to the Veteran. That decision is now final. 2. The evidence since the January 1988 rating decision is new and material; it is neither cumulative nor redundant of the evidence of record at the time of the last final denial and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW 1. The criteria for reopening a claim for service connection for residuals of frozen feet have been met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. New and Material Evidence Laws and Regulations A rating decision by the RO becomes final, if not appealed within one year of the date of the notice of the adverse determination, except a claim previously denied by the RO may be reopened if new and material evidence is presented. 38 U.S.C.A. §§ 5108, 7105. New evidence means existing evidence not previously submitted to agency decision makers. 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). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (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). Procedural History and Evidence Previously of Record In a January 1988 rating decision, the RO denied the initial claim of service connection for residuals of frozen feet because the evidence of record did not demonstrate treatment for frozen feet in service. The Veteran did not appeal the rating decision; no new and material evidence was received by VA within one year from the date that the RO mailed notice of the decision to the Veteran; and the decision is now final. 38 U.S.C.A. § 7105. The evidence at the time of the rating decision consisted of the Veteran's service treatment records. Additional Evidence Since the January 1988 rating decision, additional VA examination reports, pictures of the Veteran's feet, the Veteran's statements in support of his claim, and the Veteran's January 2012 Travel Board Hearing transcript have been added to the record. Also added to the claims file is a personnel record which reveals that the Veteran was a patient in a medical holding company between May 1981 and June 1981, and a June 1981 letter of appreciation which notes "your willingness to help others...is a quality not normally found in Medical Holding Company patients." The evidence is new because it was not previously considered by the RO at the time of the January 1988 rating decision and is not cumulative or redundant of the evidence previously considered. The evidence submitted since the January 1988 rating decision is also material. Most significantly, the June 1981 letter and January 2012 hearing testimony suggest that the Veteran was treated as an in-patient in the medical holding company due to cold injury residuals. The Veteran is presumed credible for the purpose of reopening the claim and his assertions relate to an unestablished fact necessary to substantiate the claim. As the evidence is both new and material, reopening the claim for service connection for cold injury residuals is warranted. ORDER New and material evidence has been presented and the claim for service connection for cold injury residuals is reopened; to this extent only, the appeal is granted. REMAND As the RO has not adjudicated the reopened claim of service connection on the merits, the claim must be remanded for initial consideration by the RO. The Veteran's service treatment records demonstrate tinea pedis in February 1981 but treatment for, or a diagnosis of, cold injury residuals is not shown. During his January 2012 Travel Board Hearing, however, the Veteran insisted that he was admitted to the hospital at Fort Campbell, Kentucky, for several months for treatment of frostbite. In accordance with its duty to assist, VA must retrieve any and all available service treatment records. 38 C.F.R. § 3.159(c)(2). Efforts must be made to determine whether in-patient records pertaining to the Veteran's treatment for cold injury residuals exist and, if so, they must be retrieved. The Veteran has not been afforded a VA examination to determine the nature and etiology of his claimed cold injury residuals. Where the evidence indicates that the Veteran's claimed symptoms may be associated with the Veteran's service, an examination is in order. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the Veteran's in-patient hospital treatment records from the medical holding company at Fort Campbell, Kentucky, between February and June 1981. 2. Schedule the Veteran for a VA examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner is to provide diagnoses for any and all cold injury residuals of the feet found upon examination and review of the claims file. Thereafter, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that cold injury residuals of the feet are related to service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. 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). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs