Citation Nr: 19129293 Decision Date: 04/15/19 Archive Date: 04/15/19 DOCKET NO. 16-31 690 DATE: April 15, 2019 ORDER The application to reopen the claim for entitlement to service connection for frostbite of the feet is granted. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, residual to frostbite of the feet, is granted. FINDINGS OF FACT 1. In an August 2009 rating decision, the RO denied service connection for frostbite of the feet. Although the Veteran was notified of the RO’s decision and his appellate rights in an August 2009 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of issuance of that decision. 2. The evidence received since the final August 2009 rating decision denying service connection for frostbite of the feet relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s bilateral lower extremity peripheral neuropathy is related to frostbite of the feet from in-service cold injury. CONCLUSIONS OF LAW 1. The August 2009 rating decision denying service connection for frostbite of the feet is final. 38 U.S.C. § 7105(c) (2012); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has been received to warrant reopening the claim of service connection for frostbite of the feet. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bilateral lower extremity peripheral neuropathy residuals to frostbite of the feet have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1954 to February 1956. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied reopening the claim of frostbite residuals of the feet. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In April 2018, the Veteran testified during a videoconference hearing before the undersigned. Although a transcript of that hearing has not yet been made, one is not necessary in this case as the benefit sought is being granted in full. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Frostbite of the Feet As set forth above, in an August 2009 rating decision, the RO denied entitlement to service connection for frostbite residuals of the feet. The RO found no evidence of treatment or diagnosis of frostbite of the feet in service, and no relationship between the current condition and military service. The Veteran was notified of his appellate rights in an August 2009 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO’s August 2009 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for frostbite of the feet. As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in August 2009. That evidence includes a December 2013 letter from a private physician, who reported that the Veteran suffered a cold injury to his feet in the military and has peripheral sensory polyneuropathy. The private physician opined that it was the principle cause of the Veteran’s sensory neuropathy in his feet. Given the basis for the prior denial of the claim, and presuming the credibility of this evidence, the Board finds that this additional evidence relates to unestablished facts necessary to substantiate the claims of service connection for degenerative joint disease of the cervical spine and headaches and raises a reasonable possibility of substantiating the claims. Reopening of the claim is therefore warranted. Turning to the merits in this case, the Veteran seeks service connection for frostbite residuals of the feet. For the following reasons, the Board finds that service connection for frostbite of the feet is warranted. In this case, the evidence of record demonstrates that the requirement for a current disability has been met. Specifically, a March 2013 VA clinical record shows a diagnosis of unspecified idiopathic peripheral neuropathy. Additionally, a December 2013 private treatment record shows a diagnoses of lower extremity peripheral neuropathy and peripheral sensory polyneuropathy. The evidence of record also supports a finding that an in-service cold injury requirement has been met. As a preliminary matter the Veteran’s service treatment records are negative of complaints, treatment, and diagnosis of frostbite of the feet. At the Veteran’s February 1956 separation examination, his feet were examined and noted as normal. In a January 2014 statement, the Veteran reported he was a military policeman with 7th MP Company, 7th Infantry Division serving in Korea from 1955 to January 1956. He indicated that while on field maneuvers in January 1956 with his unit at the 38th parallel, there were 21 inches of snow on the ground, and they stayed on maneuver for three weeks. The Veteran indicated that they had to stay in two-man tents without heat or lights because of an ongoing blackout. He stated that he was due to get out of the Army in February 1956 and did not dare to go to the medic for his feet, since he was afraid they would keep him in Korea longer. The Veteran reported that he finally went to a medic when he was sailing home on the USS General Freeman in February 1956, and he was told he had frostbite, but there was nothing they could do for it. The Veteran noted that he has had problems with his feet since January 1956, prior to discharge. Here, the Veteran has indicated that he had symptoms during service and his statements in this regard are competent, credible, and consistent with the circumstances of his service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service records). This is sufficient to establish the second element of his service connection claim. The evidence of record also indicates that the third element of a nexus has been met. Specifically, in a December 2013 letter, a private physician reported that the Veteran suffered a cold injury to his feet in the military and has peripheral sensory polyneuropathy. The private physician opined that it was the principle cause of the Veteran’s sensory neuropathy in his feet. Although the private physician did not provide a detailed rationale for his December 2013 opinion, he nonetheless concluded based upon an examination of the Veteran and a review of his reported history that the peripheral sensory polyneuropathy was related to service. The opinion is thus entitled to some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner did not explicitly lay out the examiner’s journey from the facts to a conclusion, did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no contrary medical opinion in the evidence of record. (Continued on the next page)   For the foregoing reasons, in light of the competent and credible evidence lay statements of frostbite symptoms due to cold injury in-service, post-service diagnosis of bilateral lower extremity peripheral polyneuropathy, and a probative medical opinion indicating a relationship between the two, service connection is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel