Citation Nr: 18153933 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 18-22 899 DATE: November 28, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for frostbite residuals of the hands is granted. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for frostbite residuals of the feet is granted. Entitlement to an earlier effective date prior to December 12, 2015, for the grant of service connection for bilateral tinnitus is denied. REMANDED Entitlement to service connection for frostbite residuals of the hands is remanded. Entitlement to service connection for frostbite residuals of the feet is remanded. Entitlement to service connection for bilateral sensorineural hearing loss is remanded. Entitlement to service connection for bilateral shoulder disability is remanded. FINDINGS OF FACT 1. In an unappealed April 2008 rating decision, the RO denied the claims of entitlement to service connection for frostbite residuals of the hands and feet. 2. Evidence associated with the claims file since the April 2008 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claims of entitlement to service connection for frostbite residuals of the hands and feet. 3. On December 7, 2015, the Veteran’s intent to file for service connection for bilateral tinnitus was received by the RO; there was no communication received prior to that date indicating an intent to file a claim for service connection for tinnitus. CONCLUSIONS OF LAW 1. The April 2008 rating decision that denied entitlement to service connection for frostbite residuals of the hand and feet was final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302(b), 20.1103 (2017). 2. New and material evidence has been received since the RO’s April 2008 rating decision, thus the claims for service connection for frostbite residuals of the hands and feet is reopen. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for an earlier effective date prior to December 7, 2015, for the award of service connection for bilateral tinnitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S Army from July 1986 to August 1989. This case comes to the Board on appeal from August 2016 rating decision. In August 2018, the Veteran testified during a live videoconference hearing before the below undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. New and Material Evidence – Frostbite Residuals of Hands and Feet Generally, a claim that has been denied in a final unappealed RO decision may not be reopened and re-adjudicated. 38 U.S.C. § 7105(c) (2012). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen claims of entitlement to service connection for frostbite residuals of the hands and feet In this instance, at the time of the April 2008 rating decision, which denied the claims of service connection for frostbite residuals of the hands and feet, the evidence of record consisted of the Veteran’s incomplete service treatment records (STRs), VA outpatient treatment records, and the Veteran’s initial claim. The RO denied the Veteran’s claims because there was no in-service treatment record of frostbite and the VA outpatient treatment records at that time failed to show treatment of frostbite residuals for the Veteran’s hands and feet. However, after the rating decision, the Veteran submitted an opinion from a VA podiatrist that stated the Veteran’s lower extremity tendon pathology may be related to his claim of frostbite residuals during service. See September 2018 Private Medical Opinion. Even more, the Veteran testified that he suffered frostbite to his hands and feet when his vehicle broke down during his service in Germany. He has asserted that he was treated at Wurzburg military hospital in Germany for two weeks and was discharged on profile because of frostbite to his hands and feet. See October 2016 Statement in Support. Likewise, support statements from his mother, brother and cousin reflect that the Veteran suffered from frostbite during the early months of 1989. Moreover, the Veteran’s STRs appear incomplete. There is no exit examination or service medical records for the Veteran after 1988, although he was discharged from service in August 1989. As discussed above, the language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade, supra. The Board finds that the evidence submitted since the April 2008 rating decision triggers the VA’s duty to assist. Accordingly, as the evidence submitted since the April 2008 rating decision is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims, it is new and material, and reopening of the claims is in order. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 2. Entitlement to an earlier effective date prior to December 7, 2015, for the grant of service connection for bilateral tinnitus Except as otherwise provided, the effective date of an award of service connection based on an original claim, or a claim reopened after final disallowance, “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400 (2017); see also 38 U.S.C. § 5110(a) (2012); Sears v. Principi, 16 Vet. App. 244 (2002). Effective on March 24, 2015, VA amended its regulations, effectively eliminating informal claims and requiring a “complete claim” on a form proscribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160 (2017). However, prior to March 24, 2015, which is the relevant period in this appeal, “any communication or action indicating an intent to apply for one or more benefits under the laws administered by [VA]... may be considered an informal claim. Such informal claim must identify the benefit sought.” 38 C.F.R. § 3.155(a) (2014). The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Likewise, the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999). The Veteran contends that he is entitled to an effective date prior to December 7, 2015, for the award of service connection for bilateral tinnitus. In a December 7, 2015 notice letter, the RO informed the Veteran that his notice of intent to file a claim for compensation was received. See December 2015 Notification Letter. On January 29, 2016, the Veteran’s claim for bilateral tinnitus was received by the RO. See January 2016 VA 21-526 EZ. The August 2016 rating decision granted the Veteran’s claim with a 10 percent evaluation effective December 7, 2015, the date of his notice of intent to file. The Veteran has not called attention to an earlier claim for service connection and none are found in the record. The Board notes that the effective date of an award for service connection “shall not be earlier than the date of receipt of application therefor.” See 38 U.S.C. § 5110(a). In this case, the Veteran’s intent to file a claim for service connection for tinnitus was received by the RO on December 7, 2015, and the Veteran’s actual claim form was received on January 26, 2016. Therefore, the Board concludes that entitlement to an earlier effective date prior to December 7, 2015, for the award of service connection for bilateral tinnitus is not warranted. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Entitlement to service connection for frostbite residuals of the hands and feet is remanded. Here, as discussed above, the Veteran’s claim for frostbite residuals of the hands and feet has triggered the VA’s duty to assist. The Veteran testified that he is suffering from residuals of frostbite to his feet and hands. The medical evidence of record shows that the Veteran had surgery on his right foot and chronic pain in left foot. Additionally, VA outpatient treatment records show that the Veteran has chronic pain in his hands which was diagnosed in May 2013. Even more, the Veteran’s STRs remain deficient, as the period before leaving service in August 1989 has not been associated with the claims file. The Board notes that there have been request for the Veteran’s medical record from the Wurzburg military hospital in Germany, but no records from that facility for the period after 1988 have been provided. Therefore, a search for those records as well as, a VA examination and opinion should be afforded to the Veteran to support his claim. See 38 U.S.C. § 5103A. 2. Entitlement to service connection for bilateral sensorineural hearing loss is remanded. Likewise, the Veteran testified that he suffers from bilateral hearing loss. Although the Veteran was provided a VA examination in August 2016, which failed to show hearing loss for VA purposes, the Veteran indicated that his hearing is impaired to the point where must use speaker phone, closed captioning, and read lips. Even more, the Veteran testified that he was exposed to military noise during his time in service. He stated that he trained with and was around small and large caliber weapons and military vehicles, which he contends has caused his hearing loss. As such, the Veteran should be afforded a VA audiological examination and if hearing loss is found, an opinion should be provided as to its etiology. 3. Entitlement to service connection for bilateral shoulder disability is remanded. Additionally, the Veteran testified that his bilateral shoulder disabilities were incurred in service due to bear crawling during basic training. The Veteran’s current VA outpatient treatment records show the Veteran suffers from bilateral shoulder pain. Specifically, the Veteran has a torn left rotator cuff and chronic pain in his right shoulder. Based on the Veteran’s testimony, current treatment records and the outstanding STRs, a VA examination and opinion is warranted to determine the etiology of the Veteran’s bilateral shoulder disabilities. The matters are REMANDED for the following action: 1. Obtain from Wurzburg military hospital in Germany all outstanding, pertinent records of evaluation and/or treatment of the Veteran from 1/1/1988 to 9/1/1989. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regards to requesting records from Federal facilities. Additionally, obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for a VA examination to determine the nature and etiology of his: (1) bilateral shoulder disability; (2) bilateral hand disability; (3) bilateral foot disability, and (4) bilateral hearing loss. The VA examiner must review the complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. All necessary tests and studies should be accomplished and all clinical findings reported in detail. The VA examiner should address the following: (a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed left foot condition had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. (b) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed right foot condition had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. (c) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed hearing loss had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. (d) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed left shoulder disability had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. (e) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any diagnosed right shoulder condition had its onset during service or is otherwise causally related to any event or circumstance of the Veteran’s service. The examiner should cite to the pertinent medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel