Citation Nr: 18106903 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 15-09 408 DATE: June 1, 2018 ORDER New and material evidence having not been received, the Veteran’s application to reopen the claim of entitlement to service connection for a left foot disability manifested by residuals of a cold injury is denied. FINDINGS OF FACT 1. An August 1996 rating decision, in pertinent part, denied entitlement to service connection for trench foot; the Veteran did not timely file a notice of disagreement and no new and material evidence was received during the appeal period. 2. Evidence received subsequent to the August 1996 rating decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a left foot disability manifested by residuals of a cold injury; and does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 1996 rating decision, which in pertinent part, denied entitlement to service connection for a trench foot, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence sufficient to reopen the previously denied claim for service connection for a left foot disability manifested by residuals of a cold injury has not been received. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1994 to March 1996. The Veteran testified at a July 2016 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated within the Veterans Appeals Control and Locator System (VACOLS) and reflects the record was held open for 30 days after the hearing to allow the Veteran to submit additional evidence in the form of private medical records from Dr. Hason, beginning in 1996 until Dr. Hason’s retirement in 1999 or 2000; however, no additional evidence has been submitted by the Veteran. Thus, the Board may proceed with appellate review. Additionally, since the most recent January 2015 statement of the case issued for the appeal herein, additional evidence has been associated with the record, to include additional VA treatment records and November 2016 and April 2018 respiratory conditions disability benefits questionnaires. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. 38 C.F.R. § 20.1304 (c) (2017). However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See VBA Fast Letter 14-02. Here, although the Veteran’s substantive appeal for the appeal herein was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. The record does not reflect that the additional evidence was submitted by the Veteran. Nevertheless, as such evidence is not relevant and/or is duplicative of prior evidence, a remand for AOJ consideration is not warranted. In a March 2018 application for benefits, the Veteran, in pertinent part, requested an increased rating for bilateral hearing loss. The record does not reflect that service connection has been established for hearing loss. As such, the Veteran’s request may be deemed an attempt to claim service connection for hearing loss. The record reflects the AOJ scheduled the Veteran for an examination in the form of a hearing loss and tinnitus disability benefits questionnaire; however, the Veteran did not report to the scheduled examination, but in an April 2018 Report of General Information, he requested that the examination be rescheduled. In any event, this matter has not yet been acted upon. Thus, the Board does have jurisdiction over this and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left foot disability manifested by residuals of a cold injury. The Veteran filed a claim for service connection for left trench foot in April 1996 which was denied in an August 1996 rating decision. Specifically, the August 1996 rating decision found a review of the Veteran’s service medical records showed the Veteran sustained a possible cold injury to the feet in March 1995 but there were no subsequent complaints or findings relative to the injury. The August 1996 rating decision cited a May 1996 VA general examination report, which found, in part, the Veteran had yet to experience any residuals, his feet were normal, and endorsed a diagnosis of a history of trench foot. The August 1996 rating decision found there was no indication that the Veteran suffered from frostbite, noted that no residuals of any cold injury were noted upon examination, and denied the claim. The Veteran did not submit a timely notice of disagreement with respect to the August 1996 rating decision denial of the claim, and new and material evidence was not received during the appeal period. Thus, the August 1996 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issue going to the merits. 38 C.F.R. § 20.1105 (2017). The issue of reopening a claim goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, at 118 (2010). New evidence associated with the record since the August 1996 rating decision includes additional VA medical records, additional statements from the Veteran, and July 2016 testimony from the Veteran. However, the additional VA treatment records do not identify left trench foot disability, residuals of cold injury, but in fact indicate the opposite, specifically, that the Veteran’s left foot was found to be clinically normal on multiple occasions, and that was there no documentation of any complaints related to a left foot disability. Specifically, December 2013 and December 2014 VA treatment records noted the Veteran’s feet, in part, had normal sensation to light touch and monofilament, bilaterally, and no wounds and/or ulcers. A December 2014 VA treatment record further described the Veteran had a bilateral diabetic foot examination and his skin was normal, without lesions or ulcers, his pulses were palpable, and sensation, using monofilament, was intact in all areas. As noted above, subsequent to the January 2015 statement of the case, additional VA treatment records provided duplicative evidence of a lack of a left foot disability. In this regard, consistent with the December 2013 and December 2014 VA treatment records, described above, March 2015 VA treatment records noted the Veteran’s feet, in part, had normal sensation to light touch and monofilament, bilaterally, and no wounds and/or ulcers. Similarly, April 2015 VA treatment records described, in part, the Veteran had no rashes or ulcers and had sensation in the lower feet. July 2016 and August 2016 VA treatment records, noted, as part of a foot examination, that the Veteran’s feet were normal by visual examination, with normal pulses, a normal nailbed, and no calluses. The feet were positive for ankle jerk reflex, positive for vibration sensation and positive for soft touch sensation using 5.07 monofilament. More recently, a March 2018 VA treatment record noted, in part, the Veteran’s skin was warm, dry, and he had no rashes, and he had no lesions or ulcers of the bilateral feet. A May 2018 VA treatment record noted, in part, with respect to a bilateral foot examination, the visual inspection was normal without ulcers or other lesions, the bilateral dorsalis pedis and posterior tibial pulses were palpable and bilateral protective sensation with 5.07 monofilament was present. The Board recognizes that the Veteran, in July 2016 testimony, described manifestations related to his left foot disability at issue in this appeal and linked such to a February 1995 in-service cold weather injury. Specifically, the Veteran testified, in part, that his left foot symptoms included discoloration, burning, numbness, tingling, pain, as well as peeling and shedding of skin. Such testimony is presumed credible for the limited purpose of reopening the claim. However, the Veteran’s assertions of the existence of a left foot disability manifested by residuals of a cold injury and a link between such a left foot disability to his active service on a direct-incurrence basis, is not new evidence as such contentions were made with respect to the initial claim and are instead, cumulative of the previous evidence. Bostain v. West, 11 Vet. App. 124 (1998) (lay hearing testimony that is cumulative of previous contentions considered by decision maker at time of prior final disallowance of the claim is not new evidence).   As discussed above, the clinical evidence of record, in fact, reflects the opposite and does not reveal complaints or a discussion related to any of these identified symptoms. Moreover, a symptom of pain of the feet was reported in the conjunction with a prior claim for bilateral pes planus, as noted in a May 1996 feet examination report, which the Veteran at that time attributed to prolonged walking, standing, and climbing during basic training, the claim for which was also denied in the August 1996 rating decision. In this regard, the May 1996 feet examination report endorsed a diagnosis of bilateral pes planus, and as noted above, the May 1996 general examination report endorsed a diagnosis of a history of trench foot but found the Veteran’s feet were normal upon examination. In this regard, as discussed above, the clinical evidence of record does not demonstrate evidence of a current left foot disability manifested by residuals of a cold injury, but in fact, reflects the opposite. Further, in his April 2014 notice of disagreement and March 2015 substantive appeal, the Veteran, in part, reported in-service left foot frostbite as a result of a snowstorm in January 1995, and that he specifically was told by a VA doctor that he had mild frostbite and that as he aged his foot would get worse, especially during cold weather. However, a layperson’s account of what a medical provider purportedly said, filtered as it was through a layman’s sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. Robinette v. Brown, 8 Vet. App. 69 (1995). Further, while the Veteran’s service treatment records do document complaints of a left foot cold weather injury, albeit such are dated in March 1995, rather than January 1995 or February 1995, such were of record at the time of the August 1996 rating decision. Accordingly, for the reasons stated above, and even considering the low threshold standard outlined pursuant to Shade, the Board finds that new and material   evidence has not been received, and thus claim for service connection for a left foot disability may not be reopened. See 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel