Citation Nr: 1603627 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 10-03 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been presented to reopen the previously denied claim for entitlement to service connection for peripheral vascular disease (PVD), lower extremities, to include as secondary to service-connected cold injury residuals, bilateral feet. 2. Entitlement to service connection for colon cancer. 3. Entitlement to service connection for gastrointestinal tract infection. 4. Entitlement to service connection for ventral hernia. 5. Entitlement to a disability rating in excess of 10 percent for cold injury residuals, right foot. 6. Entitlement to a disability rating in excess of 10 percent for cold injury residuals, left foot. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1959 to December 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from March 2009, January 2010, and November 2013 rating decisions of the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned in December 2015. With regards to the Veteran's claim for service connection for ventral hernia, the November 2013 rating decision adjudicated this claim as a request to reopen. Therein, the Agency of Original Jurisdiction (AOJ) noted that a statement of the case (SOC) was issued for this claim in August 2013 but the Veteran did not timely file a substantive appeal. After a review of the record, the Board finds this determination to be in error. The Veteran did file a timely substantive appeal via VA Form 9 in September 2013. Thus, the AOJ's denial of the claim did not become final and the issue is on appeal. The Board will otherwise waive any procedural defect as to the timely filing of an appeal regarding that issue. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The Veteran's claim for service connection for PVD will be reopened and remanded to the agency of original jurisdiction (AOJ), along with the remaining issues on appeal. FINDINGS OF FACT 1. Service connection for PVD was initially denied in an October 2006 rating decision on the bases that the vascular condition was not related to the Veteran's active service and because service connection was not warranted on a secondary basis due to the Veteran's cold injury residuals not being service connected. The Veteran did not appeal this decision. 2. Evidence received since the October 2006 denial was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating his claim of service connection for PVD. CONCLUSIONS OF LAW 1. The October 2006 rating decision, which denied the Veteran's claim of service connection for PVD, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302; 20.1103 (2015). 2. The criteria for reopening the claim of entitlement to service connection for PVD have been met. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for PVD (claimed as a vascular condition) was denied in an October 2006 rating decision on the bases that the vascular condition was not related to the Veteran's active service and because service connection was not warranted on a secondary basis due to the Veteran's cold injury residuals not being service connected. New and material evidence was not received within a year of notice of the decision. See 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C.A. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Since the prior denial, a March 2009 administrative decision found that the Veteran's January 1964 cold weather injury did occur in the line of duty. As this decision was not before VA at the time of the prior denial, it is new. As it tends to substantiate an in-service incurrence, and because it has led to the grant of service connection for the Veteran's cold injury residuals, it is also material. Therefore, the Board finds that the evidence received since the October 2006 denial was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating his claim for service connection. Thus, reopening of the Veteran's claim of service connection for PVD is warranted. To this extent only, the appeal is granted. ORDER New and material evidence having been presented, the claim for service connection for PVD is reopened. REMAND With regard to the Veteran's reopened claim for service connection for PVD, the medical opinions of record are inadequate because they fail to provide a cogent rationale for their conclusions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, the Board finds that the Veteran should be afforded a new examination to assist in clarifying the etiology of the PVD. In January 2014, the Veteran filed a timely notice of disagreement (NOD) with the November 2013 rating decision, which denied service connection for colon cancer and gastrointestinal tract infection, and also denied claims for an increased rating for cold injury residuals, right and left foot. The next step in the appellate process is for the AOJ to issue a statement of the case (SOC) with respect to these claims. As this has not yet been done, the claims are remanded for the issuance of an SOC. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.300; Manlincon v. West, 12 Vet. App. 238 (1999). Lastly, the Veteran also seeks service connection for a ventral hernia and has requested a videoconference hearing before a member of the Board. See September 2013 VA Form 9. As the Veteran has not testified before a member of the Board on this particular issue, remand of the claim is required so that a hearing may be scheduled. Accordingly, these claims are REMANDED for the following actions: 1. Schedule the Veteran for a videoconference hearing before a member of the Board on the issue of entitlement to service connection for ventral hernia. 2. Issue a statement of the case for the following issues: (a) Entitlement to service connection for colon cancer; (b) Entitlement to service connection for gastrointestinal tract infection; (c) Entitlement to a disability rating in excess of 10 percent for service-connected cold injury residuals, right foot; and (d) Entitlement to a disability rating in excess of 10 percent for service-connected cold injury residuals, left foot. 3. Schedule the Veteran for a VA examination for his peripheral vascular disease by an appropriate medical professional. The entire claims file must be reviewed in conjunction with the examination. The examiner is to confirm the Veteran's diagnosis of peripheral vascular disease. If the disability is ruled out, or if a different diagnosis is reached, a thorough explanation should be provided. For the diagnosed disability, the examiner is to answer whether it is at least as likely as not (a 50 percent or greater probability) that the disability was incurred in or is otherwise related to the Veteran's active military service. The examiner is asked to also answer whether it is at least as likely as not that the disability was proximately caused or aggravated by the Veteran's service-connected cold injury residuals, right and left foot. The examiner should be aware that the second question to be answered requires two separate opinions: one for proximate causation and one for proximate aggravation. The term "aggravation" means a permanent worsening of the disability beyond its natural progression. If aggravation of the disability by the service-connected cold injury residuals of the right and left foot is found, the examiner must attempt to establish a baseline level of severity of the disability prior to aggravation by the service-connected cold injury residuals. A complete rationale must be provided for each opinion expressed. The given rationales must consider and discuss the pertinent evidence of record, including the Veteran's lay statements. 4. Finally, readjudicate the appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. ______________________________________________ M. N. HYLAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs