Citation Nr: 21064253 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-47 280 DATE: October 19, 2021 ORDER New and material evidence not having been received, the petition to reopen a claim of entitlement to service connection for frostbite of the hands is denied. New and material evidence not having been received, the petition to reopen a claim of entitlement to service connection for frostbite of the feet is denied. Entitlement to service connection for memory loss is denied. REMANDED Entitlement to service connection for arthritis of the right hand is remanded. Entitlement to service connection for arthritis of the bilateral feet is remanded. FINDINGS OF FACT 1. In an unappealed decision of December 2010, the RO denied the Veteran's attempt to reopen his claim of entitlement to service connection for frostbite of the hands; this claim had been previously denied in a February 1996 rating decision, in a December 2005 rating decision and in a December 2010 rating decision. 2. The evidence received since December 2010 does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim for service connection for frostbite of the hands. 3. In an unappealed decision of December 2010, the RO denied the Veteran's claim of service connection for frostbite of the feet. 4. The evidence received since December 2010 does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim for service connection for frostbite of the feet. 5. The preponderance of the evidence of record is against finding that the Veteran has had a current disability manifested by memory loss that is separate and distinct from his posttraumatic stress disorder (PTSD) at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The December 2010 rating decision denying the Veteran's petition to reopen a claim of entitlement to service connection for frostbite of the hands is final; new and material evidence has not been received and the claim of entitlement to service connection for frostbite of the hands is not reopened. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156. 2. The December 2010 rating decision denying the Veteran's petition to reopen a claim of entitlement to service connection for frostbite of the feet is final; new and material evidence has not been received and the claim of entitlement to service connection for frostbite of the feet is not reopened. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156. 3. The criteria for service connection for memory loss have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to September 1974 and from March 1983 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's petitions to reopen his claims of entitlement to service connection for frostbite of the hands and service connection for frostbite of the feet; that rating decision also denied service connection for memory loss. The Veteran perfected a timely appeal to that decision. Service Connection As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial). A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. At any time after VA issues a decision on a claim, if 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, notwithstanding paragraph (a) of the same section (which defines new and material evidence). The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When all the evidence is assembled, the Secretary is then 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. New and material evidence not having been received, the petition to reopen a claim of entitlement to service connection for frostbite of the hands The Veteran's claim of entitlement to service connection for frostbite of the hands was denied in a rating action in June 1994. The evidence considered at that time included service treatment records which showed that the Veteran was treated for complaints of pain in both hands following exposure to cold weather in January 1985; the assessment was cold exposure, both hands. At his separation examination in June 1988, the Veteran reported a history of painful joints during cold weather; however, clinical evaluation of the hands was normal. By a rating action in June 1994, the RO denied the Veteran's claim of entitlement to service connection for frostbite of the hands based on a finding that the condition was not shown in service. In February 1996, the RO confirmed its previous denial of the claim, based on a finding that there was no evidence of permanent residuals of a disability of the hands. In February 1996, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until March 2005, when VA received a petition to reopen his claim for entitlement to service connection for frostbite of the hands. Therefore, the February 1996 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from February 1996 rating decision. See also Long v. Wilkie, 33 Vet. App. 167 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran sought to reopen his claim of entitlement to service connection for frostbite of the hands (VA Form 21-4138) in March 2005. Submitted in support of the claim were VA treatment records dated from January 2003 to December 2005, which reported a history of frostbite of the hands. By a rating action in December 2005, the RO conformed and continued the previous denial of the Veteran's claim of entitlement to service connection for frostbite of the hands. The RO determined that the evidence submitted is not new and material to establish that he suffered from residual disabilities due to frostbite of the hands in service. In December 2005, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until April 2010, when VA received a petition to reopen his claim for entitlement to service connection for frostbite of the hands. Therefore, the December 2005 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from December 2005 rating decision. See also Long v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). In April 2010, the Veteran sought to reopen his claim of entitlement to service connection for frostbite of the hands. Submitted in support of the claim were VA progress notes dated from March 2008 to April 2010, which show that the Veteran complained of pain in both hands due to a history of frostbite. The Veteran was afforded a cold injury protocol examination in August 2010; at that time, the Veteran indicated that in winter his hands "get like ice blocks" and start burning. He complained of mild tingling in both hands and mild swelling. Following an examination, the examiner reported a diagnosis of cold injury to both hands by history; however, he could not find any record of active or recent treatment and there were no current physical findings with residual of cold injury. By a rating action in December 2010, the RO determined that new and material evidence had been submitted to reopen the claim of service connection for frostbite of the hands; however, it was determined that the evidence continued to show that the Veteran's claimed condition of the hands was not incurred in or aggravated by military service. In December 2010, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until May 2016, when VA received a petition to reopen his claim for entitlement to service connection for frostbite of the hands. Therefore, the December 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from December 2010 rating decision. See also Long v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). In May 2016, the Veteran attempted to reopen his claim of entitlement to service connection for frostbite of the hands (VA Form 21-526EZ). Evidence submitted in support of the claim includes private medical statements, VA examination reports, and VA progress notes dated from February 2011 to September 2018. These records do not reflect a diagnosis of or treatment for residuals of frostbite to the hands. After a careful review of the record, the Board finds that the evidence added to the record since the December 2010 rating decision do not reflect any complaints of or treatment for a disability caused by frostbite of the hands. Consequently, by itself or when considered with the evidence previously of record, none of the evidence submitted since the December 2010 rating decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for frostbite of the hands and does not raise a reasonable possibility of substantiating the claim. Therefore, the Board finds that, though new, the additional evidence received since the prior final denial of service connection for frostbite of the hands in December 2010 is not probative of the issue. Thus, the added evidence is not material. See 38 C.F.R. § 3.156. As such, the Board finds that new and material evidence sufficient to reopen the Veteran's claim of service connection for frostbite of the hands has not been submitted. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit-of-the-doubt doctrine does not apply and the petition to reopen a claim of service connection for frostbite of the hands is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. New and material evidence not having been received, the petition to reopen a claim of entitlement to service connection for frostbite of the feet The Veteran's claim of entitlement to service connection for frostbite of the feet was denied in a rating action in December 2010. The evidence associated with the claims file at the time of the December 2010 rating decision included the service treatment records which were negative for any complaints, treatment of or a diagnosis of frostbite of the feet. Also of record were VA progress notes dated from May 2007 through August 2010, which were negative for any complaints, treatment of or diagnosis of frostbite of the feet. In a December 2010 rating decision, the AOJ denied service connection for frostbite of the feet on the basis that the evidence did not show current diagnosed frostbite of the feet, and there was no evidence of this condition occurring during service. As a result, service connection for frostbite of the feet neuropathy was denied since the condition was neither occurred in nor was caused by service. In December 2010, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection was received until May 2016, when VA received a petition to reopen his claim for entitlement to service connection for frostbite of the feet. Therefore, the December 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from December 2010 rating decision. See also Long v. Wilkie, supra; Bond v. Shinseki, supra; Roebuck v. Nicholson, supra; Muehl v. West, supra. Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran's request to reopen his claim for service connection for frostbite of the feet (VA Form 21-526EZ) was received in May 2016. Evidence received since the December 2010 rating decision includes private medical statements, VA examination reports, and VA progress notes dated from February 2011 to September 2018. These records do not reflect a diagnosis of or treatment for residuals of frostbite to the feet. The Board finds that the additional evidence is not new and material. While the evidence is new, they are not both new and material as the evidence does not relate to an unestablished fact necessary to substantiate the Veteran's claim. Specifically, the evidence does not address pertinent symptoms or diagnosis of a current disability of the feet resulting from frostbite of the feet incurred during service. As such, the evidence submitted since the December 2010 rating decision is not relevant to the issue on appeal, and therefore it does not relate to an unestablished fact necessary to substantiate the claim for service connection for frostbite of the feet. Accordingly, the Board finds that new and material evidence has not been received to reopen service connection for frostbite of the feet. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Based on the foregoing, the evidence received since the December 2010 rating decision is not material because it does not make a previously unestablished fact more likely to be established and it does not raise the possibility of reasonably substantiating the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. As new and material evidence to reopen the finally disallowed claim has not been submitted, the benefit of the doubt doctrine is not for application and the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Entitlement to service connection for memory loss The Veteran essentially contends that he has a current memory loss disability that is directly related to his period of service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed. The Veteran's service treatment records are negative for complaints, treatment or diagnosis related to a memory impairment disability or to memory impairment. Post-service records are significant for complaints of forgetfulness and mild memory loss; however, multiple examinations of record show that the Veteran's memory loss has been attributed to and contemplated in the diagnostic determination of his psychiatric disorder. A December 2014 VA examination report reflected the Veteran's complaints of having disrupted memories of the death he witnessed in service and he was diagnosed with PTSD, depressive disorder, and substance abuse. A November 2019 VA examination report reflected a diagnosis of PTSD as well as the Veteran's reports of some forgetfulness. The November 2019 VA examiner determined that the Veteran's diagnosed psychiatric condition was manifested by mild memory loss among other symptoms. In consideration of evidence of record, the Board finds no current diagnosis of memory loss or a disability manifested as memory loss is present. The Board notes a current disability is always required in order to establish service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With regard to the claimed memory loss there is not sufficient evidence to show that the Veteran has had a right eye condition during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board acknowledges the United States Court of Appeals for Veterans Claims (Court's) holding in Saunders but does not find a basis for determining that there is functional impairment related to a diagnosis of a right condition or residuals of a right eye injury. See Saunders v. Wilkie, supra. The Veteran has not alleged manifestations of similar severity, frequency and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020). In addition, the record does not reflect a diagnosis related to a disorder manifested by memory loss that is separate and distinct from the service connected PTSD. See Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). The Board notes that the Veteran has not been afforded a VA examination addressing his claimed memory loss. However, the Board finds that such an examination is not required. In this regard, in determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The service treatment records are otherwise negative for complaints, treatments or diagnoses related to any memory loss or disability manifested as memory loss. Further, the evidence does not indicate that the Veteran has a current diagnosis of memory loss or a disability manifested as memory loss that is separate and distinct from the already service connected PTSD. See McLendon v. Nicholson, supra. In this regard, while the Veteran himself has advanced such a theory, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a VA examination and/or opinion is not necessary to decide this claim. In summary, the controlling question in this case is answered in the negative. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that service connection presupposes a current diagnosis of the condition claimed, to at least confirm the veteran has it; without this minimum level of proof, there can be no valid claim). Therefore, as the evidence of record shows that the Veteran does not have a residuals of a right eye injury, the Board concludes that service connection is not warranted, and no further discussion of the remaining elements is necessary. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."); see also Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006) (finding that the absence of any one element will result in denial of service connection). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for memory loss and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to service connection for arthritis of the right hand is remanded. 2. Entitlement to service connection for arthritis of the bilateral feet is remanded. Regarding the claims of entitlement to service connection for arthritis of the right hand and bilateral feet, the Veteran submitted a timely notice of disagreement with a September 2016 rating decision denying entitlement to service connection for arthritis of the right hand and bilateral feet, but a statement of the case has not yet been issued addressing such claims. The statement of the case issued in October 2018 does not address the issues of entitlement to service connection for arthritis of the right hand and bilateral feet. As such, the Board lacks jurisdiction to decide these claims. Where a notice of disagreement has been filed with regard to a claim, but an statement of the case has not been issued, the Board must remand the appeal to the agency of original jurisdiction (AOJ) so that a statement of the case may be issued. Thus, a remand is required for the AOJ to issue an statement of the case with regards to the Veteran's claims of entitlement to service connection for arthritis of the right hand and bilateral feet. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: Issue an statement of the case as to the issues of entitlement to service connection for arthritis of the right hand and bilateral feet, in response to the timely notice of disagreement that the Veteran filed in October 2016. The statement of the case should undertake a full legal analysis of the merits of the claim based on all relevant evidence of record. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.