Citation Nr: 21064201 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-15 718 DATE: October 19, 2021 ORDER New and material evidence has not been received to reopen a claim for service connection for a back disability. A disability rating higher of 30 percent for residuals of frostbite injury of the right foot is granted. REMANDED 1. Entitlement to service connection for residuals of frostbite injury of the left foot is remanded. 2. Entitlement to a compensable disability rating for left ear hearing loss is remanded. FINDINGS OF FACT 1. In a final May 2003 rating decision, the RO denied the Veteran's claim for service connection for a back disability. 2. Evidence received since the May 2003 rating decision, while new, is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a back disability. 3. Affording the Veteran the benefit of the doubt, symptomatology associated with residuals of frostbite injury of the right foot more nearly approximate arthralgia or other pain, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for a back disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). 2. The criteria for a disability rating of 30 percent, but no higher, for residuals of frostbite injury of the right foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7122. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty service April 1983 to April 2003. In June 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. During the hearing, the Veteran indicated that he wished to appeal the application to reopen the claim for service connection for a back disability, as well as the claims for increased ratings for residuals of frostbite injury of the right foot and left ear hearing loss. The Board took testimony on the three issues. Timely filing of a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009). Here, because the Board addressed and took testimony on the claims for increased ratings for residuals of frostbite injury of the right foot and left ear hearing loss, any issue as to the timeliness of the substantive appeal on these matters has been waived, and the issues are before the Board. 1. Whether new and material evidence has been received to reopen a claim for service connection for a back disability Generally, if a claim for 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. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In an unappealed May 2003 rating decision, the RO denied service connection for a back disability because the claimed disorder was not shown to be caused or aggravated during service. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the May 2003 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. At the time of the May 2003 rating decision, the evidence of record consisted of service treatment records, which showed that that the Veteran was seen for back pain in August 1990, after his first 12 mile road march. The assessment was lower back strain. A clinical treatment note approximately 7 days later, reported resolving low back pain. On separation from service in January 2003, the Veteran reported a history of chronic low back pain with loss of feeling in the legs. The clinician noted low back pain, not currently disabling. His spine was clinically evaluated as normal. Also of record was a VA examination dated February 2003, that documented the Veteran's report of low back pain that had onset in February 2002. Reportedly, he incurred injuries while playing basketball. He experienced pain and intermittent back spasms and bilateral lower extremity numbness since that time. Examination of the lumbar spine, including range of motion findings and imaging studies, was within normal limits. The examiner determined that there was insufficient objective evidence to establish a diagnosis for a chronic back disability. The evidence received subsequent to the May 2003 rating decision includes, in pertinent part, VA treatment records, which do not document any complaints or treatment for a back disability. This evidence is not material to the claim. Additionally, the record contains a September 2018 VA examination report that recorded an assessment of lumbosacral strain, along with a reported history of onset of the condition in service. The Veteran attributed his back pain to physical demands required during service. Reportedly, the back symptoms progressed with increased lower back stiffness and sharp pain. In an addendum opinion report in October 2018, following a review of the claims file, a VA examiner opined that the Veteran's back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner based the opinion on the finding that although the Veteran's separation examination was positive for back pain, service treatment records failed to yield evidence of a back problem or injury sufficient to result in a chronic problem. Neither continuity of care nor chronicity of condition could be established, and therefore a nexus was not established. The Veteran's claimed back disability was therefore less likely than not incurred in or caused by the active duty during service. This evidence is not material to that claim and in fact it provides evidence against the claim. The Board has also considered the Veteran's testimony and lay statements asserting that he developed a back disability as due to service. However, the statements are simply a reiteration of previously considered general assertions of service connection. Even assuming their credibility for new and material evidence analysis, the statements are cumulative and cannot be considered "new" and material evidence. He is simply repeating the prior claim. In any event, it is important for the Veteran to understand that event if the Board found new and material evidence, that new evidence (as cited above), would provide a basis to deny the claim once again. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Accordingly, the Veteran's petition to reopen the claim for service connection for a back disability is denied. 2. Entitlement to a disability rating higher than 20 percent disability rating for residuals of frostbite injury of the right foot Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The Veteran asserts that he is entitled to a higher disability rating than 20 percent for residuals of frostbite to the right foot. At the June 2020 Board hearing, the Veteran reported right foot numbness and constant pain. He described nail abnormalities and dead hardened dark tissue on the toenail bed. He also reported inability to do any prolonged walking due to pain. As noted above, the Veteran was assigned a 20 percent disability rating for residuals of cold injury of the right foot under Diagnostic Code 7122. Under Diagnostic Code 7122, a 20 percent rating is warranted for arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, local impaired sensation, hyperhidrosis, or x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). The next-higher rating of 30 percent, the maximum available, is warranted for arthralgia or other pain, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, x-ray abnormalities (osteoporosis, subarticular punched out lesions, or osteoarthritis). 38 C.F.R. § 4.104. Two notes accompany Diagnostic Code 7122. Note (1) instructs the rater to separately evaluate amputations of fingers or toes, and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy, under other diagnostic codes. Separately evaluate other disabilities that have been diagnosed as residual effects of cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., unless they are used to support an evaluation under Diagnostic Code 7122. Note (2) instructs the rater to evaluate each affected part (e.g., hand, foot, ear, nose) separately and combine the ratings in accordance with 38 C.F.R. §§ 4.25 and 4.26. On VA examination in September 2018, the Veteran reported nail bed disturbance, cold sensitivity, along with pain and swelling with prolonged cold exposure. He treated his foot with warm water and warm socks. The examiner noted right foot arthralgia or other pain, cold sensitivity and onychomycosis affecting two nails. The examiner noted no evidence of numbness, tissue loss, color changes, locally impaired sensation or hyperhidrosis. Imaging studies were not performed. Here, the Board finds that the evidence is in relative equipoise as to whether the Veteran's residuals of frostbite injury of the right foot more closely approximate the criteria for a 30 percent rating. The Veteran credibly reported subjective symptoms, which he is competent to report. Such symptoms included complaints of persistent pain in the feet and toes, that occurred particularly in cold weather and interfered with his ability to walk. He described hardened skin over the toenail bed, numbness, recurrent fungal infections, changes in skin color, disturbances of nail growth and sensitivity to cold weather. These subjective complaints, in addition to the objective findings of onychomycosis of at least two toenails, more closely resemble the criteria for a 30 percent rating, with symptoms of arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities. Having found that a 30 percent rating is warranted, the Board finds that a rating in excess of 30 percent is not warranted during any time of this appeal. The 30 percent rating is the maximum allowable rating under the Diagnostic Code 7122 for cold injuries, which contemplates multiple symptoms including nail, neurological and skin abnormalities. The Board finds that the evidence, including the VA examination report and the Veteran's June 2020 hearing testimony, do not show any separately compensable disabilities or complications. Affording the Veteran the benefit of the doubt, his symptomatology associated with residuals of frostbite injury of the right foot most closely aligns with the criteria for the next higher rating of 30 percent. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As a final matter, the Veteran has not specifically claimed entitlement to a total disability due to individual unemployability (TDIU) as a result of his service-connected right foot disorder. In the event that a claim of a TDIU was implicitly raised (see Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009)), review of the medical evidence does not reflect that the Veteran meets the required percentage criteria. The Veteran has not claimed, nor does the record suggest, that his service-connected disabilities preclude employment. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for left ear hearing loss is remanded. The Veteran asserts entitlement to a compensable disability rating for left ear hearing loss. At his June 2020 Board hearing, the Veteran described what appeared to be a worsening of hearing impairment. He stated that he could not hear conversation and could only understand it when looking at the lips of the individual talking. For this reason, he was unable to communicate by telephone. In support of his claim, he noted that he was being evaluated to be fitted with hearing aids. VA treatment records in August 2019, show that he was being evaluated to be fitted with hearing aids, pending an MRI. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). In light of the Veteran's testimony describing more what appears to be worsening hearing loss since he was most recent examined approximately three years ago, a new examination to evaluate the severity of the Veteran's disability is warranted. 2. Entitlement to service connection for residuals of frostbite injury of the left foot is remanded. A November 2018 rating decision, in pertinent part, denied a claim for entitlement to service connection for residuals of frostbite injury of the left foot. In September 2019, the Veteran filed a timely notice of disagreement requesting a grant of service connection for residuals of frostbite injury of the left foot. The Veteran must be issued a statement of the case on this matter. See Manlicon v. West, 12 Vet. App. 238 (1999) (Where a notice of disagreement has been filed regarding an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. If possible, the Veteran should submit these records (if any) himself. 2. Schedule the Veteran for a VA audiological examination in order to determine the current level of severity of his left ear loss disability. The claims file must be made available to the examiner. All necessary tests are to be conducted. The examiner is asked to specifically comment on the effects of the Veteran's service-connected hearing impairment on his ability to function in an occupational environment. 3. Furnish a statement of the case addressing the claim for service connection for residuals of frostbite injury of the left foot. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.