Citation Nr: 1315600 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-31 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of right hand cold weather injury. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of left hand cold weather injury. 3. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of right foot cold weather injury. 4. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of left foot cold weather injury. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from September 1945 to March 1949 and from February 1952 to March 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of a special claims processing unit ('Tiger Team') at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, determined that new and material evidence had not been submitted to reopen the claims. The RO in Portland, Oregon, currently has jurisdiction of the claims. The Veteran requested a hearing before the Board in his July 2010 VA Form 9. The RO informed the Veteran that his requested hearing had been scheduled for June 2012. See April 2012 letter. The Veteran, however, failed to report for the scheduled hearing. The Board acknowledges a VA physician's April 2012 statement in which it was noted that the Veteran had recently been assigned to Home Based Primary Care Team as he was unable to travel out of the house any longer. See VA Form 21-4138 located in the Virtual VA folder. As the record does not indicate the Veteran has requested that the hearing be rescheduled, the Board deems the Veteran's request for a hearing to be withdrawn. 38 C.F.R. § 20.704. The claims were remanded by the Board in August 2012 for additional development. The actions directed by the Board have been accomplished and the matters returned for appellate review. 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). FINDINGS OF FACT 1. The original claims for entitlement to service connection for residuals of cold weather injuries to the hands and feet were denied by the Board in August 1990 on the basis that the Veteran did not have residuals of frozen feet and hands which were incurred in or aggravated by service. 2. Additional evidence received since August 1990 on the issue of service connection for residuals of cold weather injuries to the hands and feet does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen any of the claims for service connection for residuals of cold weather injuries to the hands and feet. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. §§ 3.156, 20.1104 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In regards to claims to reopen, the RO must provide notice as to what evidence is necessary to substantiate the element(s) of service connection that was found insufficient in its previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). Initial notice was provided to the Veteran in a February 2009 letter and additional notice which, in essence, informed the Veteran that the claim was originally denied because of a lack of evidence showing current cold weather injury residuals to the hands and/or feet as a result of service, was provided in an August 2012 letter, pursuant to the Board's August 2012 remand. The claims were readjudicated in a February 2013 supplemental statement of the case (SSOC). Accordingly, the duty to notify has been fulfilled. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an SSOC, is sufficient to cure a timing defect). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. This duty has also been met, as the Veteran's service, VA and private treatment records have been associated with the claims folder. There has also been substantial compliance with the Board's August 2012 remand instructions to obtain complete treatment reports from the VA Roseburg Healthcare System dated before August 2004, as well as records from this facility dated as of January 2009, and to obtain records from the Social Security Administration (SSA). See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Records from the VA Roseburg Healthcare System dated between 1996 and August 2004, and since January 2009, were obtained. The RO determined that records from the VA Roseburg Healthcare System dated prior to 1996, as well as records from the SSA, were not available, in accordance with 38 C.F.R. § 3.159(c)(2). See January 2013 memorandum; see also reply from SSA. The Board acknowledges that the Veteran was not afforded a VA examination in conjunction with his claims to reopen. However, VA is not required to provide an examination in the absence of new and material evidence. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. Analysis of the Claims The Veteran seeks to establish service connection for residuals of cold weather injuries to the hands and feet. The RO has declined to reopen the claims and has continued the denials issued in a previous final decision. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). In an April 1989 rating decision, the RO denied entitlement to service connection for frozen feet and hands on the basis that service treatment records were negative for frozen feet and hands. The Veteran appealed, and in August 1990, the Board denied the claims after concluding that the Veteran did not have residuals of frozen feet and hands which were incurred in or aggravated by service. The Veteran did not appeal this decision and it became final. See 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (2012). The Veteran filed a claim to reopen in August 2009, and this appeal ensues from the July 2009 rating decision issued by the Cleveland, Ohio, RO, which declined to reopen the claims for service connection for residuals of right and left hand, and right and left feet, cold weather injuries on the basis that no new and material evidence had been submitted. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. 3.156. Evidence is new if it has not been previously submitted to agency decision makers. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Evidence is material if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative or 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. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of determining whether VA has received new and material evidence sufficient to reopen a previously-denied claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992); see also Madden v. Gober, 125 F.3d 1477, 1481 (1997); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. The evidence on file at the time of the August 1990 Board decision consisted of the Veteran's service treatment records, a February 1988 statement from the Veteran's sister, private medical reports dated in 1988 and 1989, and a transcript of the Veteran's November 1989 personal hearing. There were no complaints or findings involving residuals of cold injury to the hands and feet, including on discharge examinations in March 1949 and March 1953. The Veteran's skin was noted to be normal on discharge examinations in March 1949 and March 1953. According to a February 1988 statement from the Veteran's sister, the Veteran was having problems with his hands and feet when he returned from service in 1949, and he stated that his hands and feet had been frozen in service. When examined in June 1988 by G.F., a chiropractic physician, the color and temperature of the Veteran's lower legs and feet were good and equal, bilaterally. According to a November 1988 medical report from Dr. G.R.T., the Veteran's symptomatology was related to his low back. The Veteran reported that his feet felt numb and that the numbness had been present since a frostbite incident in service. The impression was evidence of irritative radiculopathy to the bilateral S1 nerves. According to a March 1989 statement from Dr. R.E.G., the Veteran had been his patient since 1985. Dr. G. felt that the Veteran's foot problems were the result of the frostbite incurred in service. The Veteran testified at his November 1989 RO hearing that he originally incurred frozen hands and feet because he had to be outside in freezing temperatures for a number of hours while onboard the USS Yosemite AD 19 in January 1947 as it went from Portland, Maine to Newport, Rhode Island. He indicated that treatment consisted of a flask of brandy and a warm shower, and that his hands and feet had bothered him since service. The evidence received by VA since August 1990 consists of VA and private treatment records, most of which involve treatment for disabilities other than those at issue, and the Veteran's written statements, in which he reports incurring frozen hands and feet while in service and receiving in-service treatment due to them freezing (for frostbite). See VA Form 21-526 received January 2009; July 2010 VA Form 9. The Board notes that attempts to obtain the deck logs of the USS Yosemite AD 19 were unsuccessful. See February 2012 memorandum. Records from Sacred Heart Medical Center dated in August 2004 reveal that sensation was normal to pinprick, fine touch, and vibratory stimulation. VA records dated in December 2008 and January 2009 reveal complaints related to left hand numbness, but there is no indication that these complaints were related to residuals of a cold weather injury. The Veteran complained on skin evaluation in April 2012 of a red, scaly rash on his hands, upper legs, groin, and buttocks of several weeks duration; the diagnoses were dermatophyte/tinea with auto-eczematization and tinea ungium. It was reported in May 2012 that the Veteran was getting therapy for blisters of the hands and feet; the diagnoses included drug eruption, resolving (Laxis). There is no indication that the diagnoses made in April 2012 or May 2012 were related to any reported cold weather injury. The medical evidence added to the record since August 1990 is new because it had not previously been submitted; however, it is not considered material because the evidence could not reasonably substantiate the claim were it to be reopened. More specifically, the new medical evidence remains devoid of any indication that the Veteran has residuals of cold weather injuries to the hands and/or feet that were incurred in or aggravated by service. Additionally, the Veteran's more recent statements concerning his claim are cumulative of those that were before the Board in August 1990 and are, therefore, not new. As he did prior to August 1990, the Veteran continues to assert that he incurred frozen hands and feet while in service and received in-service treatment. This same argument was advanced prior to the Board's August 1990 adjudication of the Veteran's claim. For the foregoing reasons, the Board finds that the record does not contain new and material evidence to reopen the claims for entitlement to service connection for residuals of right and left hand, or right and left feet, cold weather injuries, and that the claims to reopen must be denied. ORDER New and material evidence has not been received to reopen the claim for service connection for residuals of right hand cold weather injury. The request to reopen this claim is denied. New and material evidence has not been received to reopen the claim for service connection for residuals of left hand cold weather injury. The request to reopen this claim is denied. New and material evidence has not been received to reopen the claim for service connection for residuals of right foot cold weather injury. The request to reopen this claim is denied. New and material evidence has not been received to reopen the claim for service connection for residuals of left foot cold weather injury. The request to reopen this claim is denied. ____________________________________________ D. VAN WAMBEKE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs