Citation Nr: 20002188 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 18-10 284 DATE: January 9, 2020 ORDER The request to reopen the finally disallowed claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities is granted. Entitlement to service connection for cold weather injury residuals of the bilateral lower extremities is granted. FINDINGS OF FACT 1. In an April 2010 rating decision, the RO denied entitlement to service connection for cold weather injury residuals of the bilateral lower extremities. No timely appeal was received by VA, nor was any new and material evidence submitted within the applicable appeal period. 2. Additional evidence received since the RO’s April 2010 decision is new to the record and relates to unestablished facts necessary to substantiate the merits of the claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities and raises a reasonable possibility of substantiating the claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities. 3. The evidence is in relative equipoise as to whether cold weather injury residuals of the bilateral lower extremities are related to the Veteran’s severe cold weather exposure in combat during the Korean War. CONCLUSIONS OF LAW 1. The April 2010 rating decision is final as to the claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 3. Resolving all doubt in favor of the Veteran, the criteria for establishing entitlement to service connection for cold weather injury residuals of the bilateral lower extremities have been met. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1952 to October 1954. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which found that new and material evidence had not been received to reopen a previously denied claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities. The Veteran timely perfected an appeal. See August 2016 Notice of Disagreement; February 2018 Statement of the Case; February 2018 VA Form 9. In November 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been prepared and associated with the claims file. I. New and Material Evidence The Veteran’s claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities was previously denied and the Veteran seeks to reopen the claim. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). 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). 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. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Here, the Veteran initially filed a claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities in January 2009. In an April 2010 rating decision, the RO denied the Veteran’s claim. The Veteran was notified of the decision and his appellate rights by a letter dated in April 2010. The Veteran did not appeal that decision, nor did he submit any new and material evidence within a year of that rating decision. The April 2010 rating decision therefore became final, and new and material evidence is required to reopen the claim. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (a); 20.1103; Shade, 24 Vet. App. 110. The Board acknowledges that the RO associated the Veteran’s personnel records with the claims file in April 2017. Under 38 C.F.R. § 3.156 (c), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Although the personnel records obtained by the RO existed at the time of the April 2010 rating decision and were not previously associated with the claims file when VA decided the claim, the Board finds that the records are not relevant to the instant claim. In this regard, the Veteran’s DD214 and the Veteran’s lay statements, which were associated with the claims file at the time of the prior RO decisions, showed that the Veteran had combat service in Korea during the Korean War. Thus, the fact that the Veteran served in Korea during combat was already known by the RO and was never at issue in the prior rating decision. The newly associated personnel records are not otherwise relevant to the Veteran’s claim. Accordingly, reconsideration of the Veteran’s claim under 38 C.F.R. § 3.156 (c) is not warranted, and new and material evidence is necessary in order to reopen the claim. Relevant evidence of record at the time of the April 2010 rating decision included the Veteran’s service treatment records and VA treatment records. Based on this evidence, the Board concluded that the Veteran that the Veteran did not have a current disability of cold weather injury residuals of the bilateral lower extremities. In May 2016, the Veteran requested that his claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities be reopened. Relevant additional evidence received since the April 2010 rating decision includes private treatment records showing a diagnosis of bilateral, lower extremity peripheral autonomic neuropathy; lay statements from the Veteran regarding symptoms in and since service; and a nexus opinion from the Veteran’s private physician. This evidence was not previously on file at the time of the RO’s April 2010 rating decision; thus, it is new. Furthermore, this evidence is material because it bears directly on the missing element of the Veteran’s claim. Specifically, the Veteran’s claim was previously denied because there was no evidence that the Veteran currently had a disability manifested by cold weather injury residuals of the bilateral lower extremities. The newly received evidence consists of treatment records showing treatment for cold weather injury residuals of the bilateral lower extremities and the Veteran’s competent lay statements regarding his symptoms. Thus, the new evidence relates to unestablished facts necessary to substantiate a claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities, and it raises a reasonable possibility of substantiating the claim. Accordingly, the claim of entitlement to service connection for cold weather injury residuals of the bilateral lower extremities is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). II. Service Connection The Veteran seeks service connection for cold weather injury residuals of the bilateral lower extremities, which he contends resulted from cold weather injuries sustained during combat in the Korean War. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § § 3.303. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C. § § 1113 (b); 38 C.F.R. § § 3.303 (d). Under 38 U.S.C. § 1154 (b), VA has created a presumption regarding the in-service incurrence or aggravation of a disability claimed to be the result of combat service. When a veteran has engaged in combat with the enemy during active service, VA must accept satisfactory lay or other evidence that is “consistent with the circumstances, conditions or hardships of such service.” 38 U.S.C. § 1154 (b). This evidence serves as “sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such [combat] service.” 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). The combat presumption applies not only to combat injuries but also to the consequences of those injuries, at least in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012) (holding that the Board was required to apply the section 1154(b) presumption to both the Veteran’s claimed acoustic trauma during service and the separate question of whether he suffered permanent hearing loss while on active duty). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Id. at 999 n.9. Lay evidence is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition is capable of lay observation and may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination “medical in nature.” Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. In the present case, the Veteran has a current diagnosis of bilateral lower extremity peripheral autonomic neuropathy. See May 2016 private treatment record. Thus, the Veteran has satisfied the first Shedden requirement of a current disability. Although service treatment records do not reflect treatment for cold weather injuries to the bilateral lower extremities, the Board finds that the combat presumption of an in-service injury applies to the current claim. Service records show that the Veteran served in an infantry regiment in the Korean War from May 1953 to April 1954, where he was engaged in combat and awarded the Combat Infantryman Badge. The Veteran has consistently asserted that he has experienced intermittent pain and numbness of the bilateral lower extremities since developing frostbite during the harsh winter of 1953-54 in Korea. The Veteran is competent to relate a lay description concerning the symptoms of a cold weather injury during service. See Goss v. Brown, 9 Vet. App. 109, 113 (1996) (holding that frostbite and cold weather injury, and particularly symptoms thereof, are capable of lay observation). Moreover, the Veteran’s account of cold weather exposure in Korea is consistent with his combat service, and it further supported by articles submitted by the Veteran describing the extremely harsh Korean winter of 1953-54. Therefore, the Board concludes that there is satisfactory evidence of incurrence of a cold weather injury in service during combat, despite official confirmation. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d); Collette v. Brown, 82 F.3d 389, 392 (1996). Accordingly, the Board finds that the second Shedden element is satisfied. Turning to the question of whether there is a nexus, or link, between the currently shown disability and service, the Board finds that the evidence is, at least, in relative equipoise as to whether the Veteran’s current cold weather injury residuals had their onset in service. In numerous statements and at the November 2019 Board hearing, the Veteran testified that he continued to have pain and numbness of the bilateral lower extremities since discharge and that he mostly self-treated the condition over the years. The Veteran is competent to report that symptoms of cold weather injury residuals he first experienced in service are similar to symptoms he currently experiences, which has been diagnosed as bilateral lower extremity peripheral autonomic neuropathy. See Goss v. Brown, 9 Vet. App. 109, 113 (1996); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, the Board finds him to be credible. The Board also notes that the physical effects of cold weather exposure may be acute or chronic, with immediate and/or latent manifestations that may develop “many” years later. See VBA Live Manual, M21-1, Part III, Subpart iv, Chapter 4, Section G, Topic 4, Blocks a and b. Finally, the Board notes that the Veteran’s private physician diagnosed the Veteran with peripheral autonomic neuropathy and paresthesia and opined that the Veteran’s lower extremity peripheral numbness/tingling was as least as likely as not related to frostbite from the Korean War. See May 2016 Private Treatment Record. When considering the Veteran’s competent and credible statements along with the combat presumption under § 1154(b) and the private nexus opinion, the Board finds the evidence is in equipoise and the benefit of the doubt is given to the Veteran. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in the Veteran’s favor, cold weather injury residuals of the bilateral lower extremities, diagnosed as bilateral lower extremity peripheral autonomic neuropathy and paresthesia, had their onset in service, and service connection is warranted. 38 U.S.C. § 5107. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kipper, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.