Citation Nr: 1313087 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 11-14 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for bilateral hearing loss. 2. Whether new and material evidence was received to reopen a claim for entitlement to service connection for the residuals of cold injury to the toes. 3. Entitlement to service connection for residuals of cold injury to the feet and toes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1943 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision on behalf of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). Although the RO addressed the issues on the merits in an April 2011 statement of the case, the Board is required to determine whether new and material evidence has been presented when a claim has been previously disallowed based upon the same factual basis. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). For this reason, the Board has listed the applicable issues on the title page as whether new and material evidence was received to reopen the claims for service connection. The Board further finds that there is no apparent distinguishable difference in claims for the residuals of cold injury to the feet and toes as to require separate adjudications for each specific manifest residual disability. In January 2013, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is included in the Veteran's Virtual VA electronic record. The issues on appeal, in pertinent part, were adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). 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 whether new and material evidence was received to reopen a claim for entitlement to service connection for bilateral hearing loss 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. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. A January 1948 rating decision denied entitlement to service connection for frostbite of the toes; the Veteran was properly notified of the decision but did not appeal. 2. Evidence added to the record since the January 1948 decision does raise a reasonable possibility of substantiating the claim. 3. Residuals of a cold injury to the feet and toes, including tinea pedis, mild peripheral neuropathy involving the bilateral tibial and peroneal nerves, dystrophic toenails, and mild peripheral vascular disease, are shown to have been related to an injury incurred during combat service. CONCLUSIONS OF LAW 1. New and material evidence was received and the claim for entitlement to service connection for frostbite of the toes is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Residuals of a cold injury to the feet and toes, including tinea pedis, mild peripheral neuropathy involving the bilateral tibial and peroneal nerves, dystrophic toenails, and mild peripheral vascular disease, were incurred in military service. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties 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, 3.326(a) (2012). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (hereinafter "the Court") also held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing notice of the duties to notify and assist claimants in substantiating a claim it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. Although the June 2008 notice letter provided to the Veteran did not include information pertinent to reopening the previously denied service connection claim for frostbite to the toes, action to provide adequate notice as to this matter would unnecessarily impose additional burdens on VA with no benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The available evidence is sufficient for an adequate determination of the issues addressed in this decision. New and Material Evidence Claim Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition under 38 C.F.R. § 3.309(a) during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In this case, a January 1948 rating decision denied entitlement to service connection including for frostbite of the toes. The Veteran was notified of the decision, but did not appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). To the extent the Veteran's March 1947 claim may also be construed as including a claim for soreness in the feet, that claim is considered to have been implicitly denied in the January 1948 rating decision based upon the relatedness of the issues. See Cogburn v. Shinseki, 24 Vet. App. 205, 211-14 (2010). The evidence added to the record since January 1948 includes the Veteran's statements and testimony in support of his claim and VA examination reports dated in August 2008 and March 2011. Diagnoses of frostbite of the feet and residuals of a cold injury to the feet and toes, including tinea pedis, mild peripheral neuropathy involving the bilateral tibial and peroneal nerves, dystrophic toenails, and mild peripheral vascular disease, were provided. Based upon the evidence of record, the Board finds that the evidence received since the January 1948 rating decision is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim. The evidence includes medical reports relating present disabilities of the feet and toes to a cold injury. As new and material evidence has been received, the claim must be reopened. Service Connection Claim Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by that service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence 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). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). The evidence of record shows the Veteran served as a rifleman and participated in battles and campaigns in Normandy, Northern France, Ardennes, Rhineland, and Central Europe. He received decorations and citations including the Purple Heart Medal. His September 1945 separation examination revealed normal feet. In a March 1947 application for VA compensation benefits the Veteran reported that he experienced frostbite to the toes in Luxemburg in December 1944 and January 1945. He complained of soreness in the feet, especially during winter. A December 1947 VA examination report noted painful feet, but provided no diagnosis of a present foot disability. A January 1948 rating decision denied entitlement to service connection for frostbite of the toes. In statements and testimony in support of his claim the Veteran reported that he sustained injuries to his toes and feet during combat service. He recalled having slept in a wet foxhole and waking up in the snow during the "Battle of the Bulge." VA examination in August 2008 included a diagnosis of frostbite to the feet with residual chronic tinea pedis, onychomycosis, and loss of sensation. It was noted the Veteran described having been treated with Epsom salt soaks and having had cold temperature exposure for six weeks. He also reported that since service he had experienced chronic foot fungus, atrophy of the toenails, and cold feet. The examiner noted the claims file was reviewed and noted a date of onset for cold injury to the feet of 1944-45. A notation was provided indicating that there was no history of other cold injury, but no opinion as to etiology was provided. A March 2011 VA examination revealed tinea pedis, mild peripheral neuropathy involving the bilateral tibial and peroneal nerves, dystrophic toenails, and mild peripheral vascular disease associated with cold injury to the feet. The examiner noted the claims file was reviewed, but that there was no documentation of a frostbite injury and that it was less likely the disorder was caused by or a result of service. It was further noted that no evidence of a serious cold injury was documented and that the Veteran might have had only a minor cold injury because if it had been really bad he should have received some treatment. The examiner, however, failed to acknowledge the Veteran's report at his August 2008 VA examination of having received Epsom salt treatment by medics several days after having spent time in a cold foxhole. Based upon the evidence of record, the Board finds that the Veteran's residuals of a cold injury to the feet and toes, including tinea pedis, mild peripheral neuropathy involving the bilateral tibial and peroneal nerves, dystrophic toenails, and mild peripheral vascular disease, are shown to have been related to an injury incurred during combat service. The Veteran is shown to be a combat veteran for VA compensation purposes and his reports of having sustained a cold injury to the feet and receiving treatment during service are credible and consistent with the circumstances of his service. The evidence also shows that he complained of soreness in the feet approximately 18 months after service. His December 1947 VA examination revealed no alternative pathology for soreness in the feet. Although the March 2011 VA examiner found no documentation of a frostbite injury, the examiner failed to consider the Veteran's report of treatment in service. There is also no indication that the examiner was informed that as a combat veteran no such documentation is required if supported by satisfactory lay evidence that is consistent with the circumstances, conditions, or hardships of such service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's statements as to having sustained cold injuries severe enough to require treatment from medics is satisfactory and consistent with the circumstances, conditions, and hardships of his service. Therefore, the Board finds that entitlement service connection for residuals of a cold injury to the feet and toes, including tinea pedis, mild peripheral neuropathy involving the bilateral tibial and peroneal nerves, dystrophic toenails, and mild peripheral vascular disease, must be granted. ORDER New and material evidence was received to reopen a claim for entitlement to service connection for frostbite of the toes; to this extent the appeal is granted. Entitlement to service connection for residuals of a cold injury to the feet and toes, including tinea pedis, mild peripheral neuropathy involving the bilateral tibial and peroneal nerves, dystrophic toenails, and mild peripheral vascular disease, is granted. REMAND A review of the record shows the Veteran was provided adequate notice as to the evidence necessary to substantiate his remaining claim in June 2008. The Board finds, however, that additional development is required prior to appellate review. VA must take reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation provide medical examinations or obtain medical opinions when necessary for an adequate decision. 38 C.F.R. § 3.159. For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c). VA medical records are held to be within the Secretary's control and are considered to be a part of the record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran testified at his January 2013 Board hearing that he sought VA treatment for hearing loss in approximately 1968 or 1969. There is no indication of any effort to obtain VA treatment records dated prior to May 2001. The Veteran also testified that his hearing had been evaluated during employment examinations and indicated he would attempt to obtain copies of any existing records from his former employer. No such records were received by VA. The Board finds, however, that additional development is required prior to appellate review of the issue remaining on appeal. 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) (2012). Expedited handling is requested.) 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to his hearing loss claim. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts to allow him the opportunity to obtain and submit those records for VA review. 2. After completion of the above and any additional development deemed necessary, the issue remaining on appeal should be reviewed with consideration of all evidence of record. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2012). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs