Citation Nr: 1322030	
Decision Date: 07/10/13    Archive Date: 07/18/13

DOCKET NO.  13-04 528	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of cold weather injuries of the bilateral hands and feet.

2.  Entitlement to service connection for residuals of cold weather injuries of the bilateral hands and feet.


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse.


ATTORNEY FOR THE BOARD

M. Riley, Counsel 


INTRODUCTION

The Veteran served on active duty from October 1952 to February 1959.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in pertinent part, found that new and material evidence had not been submitted to reopen a claim for entitlement to service connection for cold weather injuries of the bilateral hands and feet.  

In May 2013, the Veteran testified before the undersigned Acting Veterans Law Judge at the RO.  A transcript of this hearing is of record. 

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 claim for entitlement to service connection for frostbite was initially denied in an unappealed July 1997 rating decision.  The Veteran attempted to reopen the claim and the most recent prior final denial was an unappealed January 2005 rating decision.

2.  The evidence received since the January 2005 rating decision is not cumulative and redundant of other evidence of record and raises a reasonable possibility of substantiating the claim.

3.  The Veteran's residuals of cold weather injuries to the bilateral hands and feet, diagnosed as peripheral neuropathy of the bilateral hands and feet, osteoarthritis of the right hand and onychomycosis of the feet, are etiologically related to active duty service.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen service connection for residuals of cold weather injuries of the bilateral hands and feet.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

2.  Service connection for residuals of cold weather injuries of the bilateral hands and feet, currently diagnosed as peripheral neuropathy of the bilateral hands and feet, osteoarthritis of the right hand, and onychomycosis of the feet, is warranted.  38 U.S.C.A. §§ 1110, 1131, 1154(b); 38 C.F.R. § 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Claim to Reopen

The claim for entitlement to service connection for cold weather injuries (characterized as frostbite) was initially denied in a July 1997 rating decision.  The RO found that there was no relationship between the claimed frostbite and the Veteran's active duty service.  Although the Veteran initiated an appeal with respect to the denial of his claim, the appeal was never perfected.  In addition, no new and material evidence was received within one year following notice of the July 1997 rating decision.  See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 U.S.C.A. § 7105.  Therefore the July 1997 rating decision became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012).

A claim which has been finally denied in an unappealed rating decision or Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a) (2012).  

The Court has held that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as enabling rather than precluding reopening.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The Veteran attempted to reopen his claim for service connection.  The most recent prior final denial was a January 2005 rating decision which found that frostbite of the extremities was not incurred in or caused by service and that additional evidence received since the last denial was cumulative and redundant.  The Veteran did not appeal that decision.  See 38 U.S.C.A. § 7105.  In addition, no new and material evidence was received within one year following notice of the January 2005 rating decision.  See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 U.S.C.A. § 7105.  The Veteran did provide copies of service personnel documents within a year of the notice of the January 2005 rating decision; however, those service personnel records were already of record.  Therefore, the January 2005 rating decision became final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2012).

The Veteran filed the present claim to reopen in October 2005.  The Board finds that the claim has been pending since that time as new and material evidence was received within one year following notice of the rating decisions in April 2006, June 2007, and March 2008.  As such, these decisions did not become final.

Specifically, in August 2006, within one year of the April 2006 rating decision, evidence received included a VA treatment record dated July 14, 2006 wherein the podiatrist noted that the Veteran had pain in the feet and legs since frostbite in service and that the Veteran had neuropathy associated with the frostbite.  As this evidence indicates that the Veteran had a current disability, neuropathy, related to frostbite in service, it is new and material.  Thus, the additional evidence bore directly and substantially upon the specific matter under consideration, was not cumulative or redundant, and was so significant that it should have been considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156.  As such, new and material evidence was submitted within one year of the issuance of the April 2006 rating decision.  Therefore, the decision did not become final.

Further, in August 2007, within one year of the June 2007 rating decision which denied reopening the claim finding no evidence showing a current cold injury disorder as a result of service, the Veteran submitted a November 30, 2006, positive medical opinion by a private neurologist, Dr. J.A. Ferro.  Dr. Ferro opined that the Veteran had sensory deficits in the feet and hands due to frostbite in Korea.  Dr. Ferro explained that "[t]he fact that sensory deficits do not extend further than the toes and finders would be consistent with a onetime event such as "frost bite."  Thus, the additional evidence bore directly and substantially upon the specific matter under consideration, was not cumulative or redundant, and was so significant that it should have been considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156.  As such, new and material evidence was submitted within one year of the issuance of the June 2007 rating decision.  Therefore, the decision did not become final.

In July 2008, within one year of the March 2008 rating decision which denied reopening the claim, additional new and material evidence was received, namely additional VA treatment records.  Specifically, these records included a January 3, 2008, VA treatment record which noted that the Veteran had "stable neuropathy sec[ondary] to frost bite" and a May 7, 2008 VA treatment record which noted that the Veteran had a history of frostbite in service with neuropathy.  Thus, the additional evidence bore directly and substantially upon the specific matter under consideration, was not cumulative or redundant, and was so significant that it should have been considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156.  As such, new and material evidence was submitted within one year of the issuance of the March 2008 rating decision.  Therefore, the decision did not become final.

As articulated above, the evidence received since the January 2005 rating decision includes several medical opinions in support of the claim, including Dr. Ferro's opinion.  In August 2012, a neurologist at the Castle Point VA Medical Center (VAMC), opined that the Veteran's longstanding neurological symptoms in the upper and lower extremities were attributable to his history of frostbite during service.  Similarly, a private neurologist provided a medical opinion in December 2012 linking the Veteran's stiffness, neuropathic pain, numbness, and increased sensitivity to cold in the hands and fingers to frostbite.  These medical opinions are new as they were not previously considered and are also material as they relate to a previously unestablished fact in the claim-the presence of a nexus linking the Veteran's disability to active duty service.  Thus, new and material evidence has been received and reopening of the claim for entitlement to service connection for residuals of cold weather injuries of the bilateral hands and feet is warranted.  

Reopened Claim

The Veteran contends that service connection is warranted for the residuals of cold weather injuries to the bilateral hands and feet.  He testified during the May 2013 hearing that he experienced frostbite in his hands and feet while serving in Korea in the winter of 1953-54.  The Veteran sought treatment with a corpsman and received a salve and wrappings, but the treatment was never documented in his service records.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish a right to compensation for a present disability, a Veteran must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 

When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Id.  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).   

Service connection may 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).  

The record clearly demonstrates the presence of a current disability.  The Veteran has received consistent treatment for peripheral neuropathy and onychomycosis of the feet with VA podiatrists since July 2002 at the Hudson Valley VAMC.  In addition, VA records document that the Veteran has arthritis in the finger joints of the right hand.  Medical records also document neurological symptoms in the hands dating from a May 1997 VA examination report.  A VA nerve conduction study performed in August 2001 demonstrated bilateral median neuropathy in the upper extremities, and private neurologists identified neurological deficiencies in the hands in November 2006 and December 2012.  The Board therefore finds that a current disability, diagnosed as peripheral neuropathy in the bilateral hands and feet, osteoarthritis of the right hand, and onychomycosis of the feet, is established.  

As noted above, the Veteran testified that he received treatment for frostbite of the hands and feet during service in Korea at the 38th parallel north outside Panmunjom in November 1953.  Service treatment records do not document the reported treatment, but indicate that Veteran was seen with complaints of a fungal infection of the hands and feet in June 1954.  Although service records are negative for specific treatment of cold weather injuries, the Veteran is competent to report the incurrence of injuries during service.  Additionally, service personnel records verify the Veteran's service in Korea in the winter of 1953 and participation in combat.  The exposure to extreme cold temperatures and frostbite reported by the Veteran is consistent with the circumstances of his combat service in Korea.  38 U.S.C.A. § 1154(b).  The Board therefore finds that the evidence establishes the presence of a current disability and an in-service injury, i.e. cold weather injuries to the bilateral hands and feet.  

The Board finds that the weight of the evidence supports the Veteran's claim that service connection is warranted for peripheral neuropathy in the bilateral hands and feet, osteoarthritis of the right hand, and onychomycosis of the feet as directly due to service.  The record contains several medical opinions in support of the claim from both VA and private physicians.  The Veteran's treating podiatrist and neurologists at the VAMC issued medical opinions on his behalf in July 2002, October 2003, March 2004, July 2004, January 2006, July 2006, and August 2012.  Two private neurologists have also provided opinions in support of the claim in November 2006 and December 2012.  The Board finds the opinion of the November 2006 private neurologist particularly persuasive, as the physician notes that the character of the Veteran's neuropathy, not extending beyond the fingers and toes, is more consistent with a onetime injury such as frostbite as opposed to a chronic progressive type of peripheral neuropathy.  Although several other etiologies for the Veteran's peripheral neuropathy have been suspected at various times throughout the claims period (i.e. cervical radiculopathy, residuals of shrapnel and gunshot wounds), the weight of the evidence clearly attributes the disability to frostbite during the Veteran's military service.  Service connection is therefore warranted, and the claim is granted.  

As a final matter, the Board notes that the grant of service connection in this case is limited to the diagnoses of peripheral neuropathy in the bilateral hands and feet, osteoarthritis of the right hand, and onychomycosis of the feet.  Although the record includes findings of left ulnar neuropathy, the evidence establishes that this condition is not a residual of the Veteran's in-service frostbite.  Rather, it is due to an shrapnel injury of the left elbow.  The Veteran's private neurologist specifically found in November 2006 that the Veteran's left ulnar nerve injury was a separate condition from his residuals of frostbite, and had a separate etiology.  Thus, the grant of service connection in this case does not include left ulnar neuropathy.  

With respect to the diagnosed peripheral neuropathy of the bilateral hands and feet, osteoarthritis of the right hand, and onychomycosis of the feet, all three elements of service connection are established.  VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision to reopen and grant the claim.



ORDER

New and material having been received, reopening of the claim for entitlement to service connection for residuals of cold weather injuries of the bilateral hands and feet is granted.

Entitlement to service connection for residuals of cold weather injuries, currently diagnosed as peripheral neuropathy of the hands and feet, osteoarthritis of the right hand, and onychomycosis of the feet, is granted.




___________________________________________
M. C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs