Citation Nr: 1341256 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-29 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for cold injury residuals, including peripheral neuropathy. 2. Entitlement to service connection for congestive heart failure, to include as due to hypertension disorder. 3. Entitlement to service connection for kidney disease, to include as due to hypertension disorder. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include, posttraumatic stress disorder (PTSD). 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for hearing loss. REPRESENTATION Veteran represented by: Ryan Farrell, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1952 to December 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2008 and January 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Offices (RO) in Cleveland, Ohio and Denver, Colorado respectively. The current jurisdiction of this is Denver, Colorado. The Board notes that the Veteran was previously represented by the Colorado Division of Veteran's Affairs, Disabled Veterans of America and Veterans of Foreign Wars, but he changed representation to Ryan Farrell in March 2012. The appropriate VA forms are associated with the claims file and the Board acknowledges this change. The Veteran testified at a Travel Board hearing before the undersigned Acting Veterans Law Judge in August 2013. A transcript of that hearing has been associated with the claims file. The June 2008 rating decision indicated that the scope of the claim was service connection for frostbite of both feet and toes, also claimed as hypothermia. Review of the record indicates that the Veteran has also testified that he suffers from frostbite and/or residuals of a cold injury in his hands and face. Accordingly, the Board has recharacterized the issue on appeal as service connection for cold injury residuals to better reflect the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993) (finding the Board is obligated to review all issues which are reasonably raised from a liberal reading of the appellant's substantive appeal, including all documents or oral testimony submitted prior to the Board decision). The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. The issues of claims to reopen claims for entitlement to service connection for a shoulder disorder and for hypertension has been raised by the record, specifically, the Veteran raised this issue at his August 2013 Travel Board hearing. This has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran has not been afforded a VA examination in connection with his current claim for residuals of frostbite. He has testified that he suffered from frostbite while in service and that he continues to suffer from residual symptoms. The Veteran also submitted statements from 2 private doctors with regard to his frostbite injury, however, neither opinion definitively diagnoses the Veteran with a current frostbite injury (although one provides a diagnosis of peripheral neuropathy) or addresses the etiology of any such disorder. Therefore, the Board finds that a VA examination and medical opinion are necessary. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Additionally, in January 2013, the RO issued a rating decision that denied the Veteran's claims for PTSD, hearing loss, congestive heart failure, and kidney disease. In August 2013, the Veteran submitted additional evidence to the Board along with a waiver of RO review, which included a statement from his doctor, Dr. K, which discussed these claims. The Board finds that this statement can be construed as a Notice of Disagreement with the January 2013 rating decision pertaining to the PTSD, hearing loss, congestive heart failure, and kidney disease claims. However, a Statement of the Case (SOC) has not been issued. Under these circumstances, a remand is necessary for the issuance of a SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). 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) (2013). Expedited handling is requested.) 1. Request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his residual cold injury, to include injury to his hands, feet, and face. After acquiring this information and obtaining any necessary authorization, obtain and associate these records with the claims file. 2. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any cold injury residuals that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's post-service medical records. The examiner should then opine as to whether it is at least as likely as not that the Veteran has a current disorder due to a cold injury, to include frostbite or hypothermia, that is causally or etiologically related to his military service. He or she should note where in/on the body these current cold injury residuals are located. The examiner must address whether the diagnosis of peripheral neuropathy provided by Dr. SC is a residual of a cold injury. The examiner must address the Veteran's statements regarding his in-service frostbite and subsequent symptoms. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and an explanation provided for that conclusion. 3. Send the Veteran an SOC concerning his claims regarding PTSD, hearing loss, hypertension, congestive heart failure, and kidney disease. Advise him that he still needs to file a timely substantive appeal in response to the SOC to perfect an appeal to the Board concerning this claim. 38 C.F.R. §§ 20.200, 20.302(b) (2013). Also advise him of the time limit for perfecting the appeal of this claim. Only if he perfects an appeal of this additional claim should it be returned to the Board for further consideration. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's residuals of cold injury claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).