Citation Nr: 21014815 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 19-32 406 DATE: March 15, 2021 ORDER New and material evidence having been received, the petition to reopen the claim for cold injury to bilateral feet is granted. New and material evidence having been received, the petition to reopen the claim for cold injury to bilateral hands is granted. REMANDED Entitlement to service connection for a cold injury to bilateral feet is remanded. Entitlement to service connection for a cold injury to bilateral hands is remanded. FINDINGS OF FACT 1. The Veteran’s claims for service connection for cold injury of the bilateral hands and feet was the subject of a final decision in December 2004. 2. The Veteran filed a claim to reopen service connection for cold injury of the bilateral hands and feet in February 2018. New and material evidence was received in the form of a medical note from the Veteran’s provider that his cold injury of the bilateral hands and feet is related to a diagnosis of Raynaud’s phenomenon, which was new because it was not previously on file and material because it is evidence that supports the nexus element of service connection. CONCLUSIONS OF LAW 1. The criteria for reopening a claim for service connection of a cold injury bilateral feet are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for reopening a claim for service connection of a clod injury bilateral has are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1956 to September 1959 and from January 1961 to January 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2021 correspondence, the Veteran’s representative withdrew his request for a Board hearing and stated that the Veteran had no more additional evidence to submit on this appeal. See VA 21-4138 Statement in Support of Claim received 2/24/2021 at page 1. The Board finds that the correspondence is sufficient and will therefore proceed with the adjudication of the claims. 1. New and material evidence having been received, the petition to reopen the claim for cold injury to bilateral feet is granted. 2. New and material evidence having been received, the petition to reopen the claim for cold injury to bilateral hands is granted. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran’s claims for service connection of a cold injury for the bilateral hands and feet were subject to a final decision when a December 2004 rating decision denying the claim was not timely appealed. This rating decision denied these issue noting that the Veteran did not have treatment in service and the place noted (Warren AFB) was not a battle, campaign, or period of service for which cold injury may be conceded. Therefore, after a year that decision became final. The Veteran submitted a VA 21-526EZ, Fully Developed Claim (Compensation) in February 2018. Since at that time his claims were final, he needed new and material evidence to reopen the claims. The Board finds that new and material evidence sufficient to reopen both issues was submitted in March 2020, when the Veteran submitted a medical note from his provider, Dr. M.A.R., wherein he opined that the Veteran demonstrated evidence of Raynaud’s phenomenon which is “clearly . . . may be a late manifestation of the frostbite injury experienced in1956.” See Medical Treatment Record received 3/03/2020 at page 4. Dr. M.A.R.’s medical note was new because it was not previously on file and material because it is evidence that supports the nexus element of service connection. Accordingly, the Board grants the Veteran’s petition to reopen and further, finds that the medical note triggers the Board’s duty to assist. REASONS FOR REMAND 1. Entitlement to service connection for a cold injury to bilateral feet is remanded. 2. Entitlement to service connection for a cold injury to bilateral hands is remanded. The Veteran contends that while stationed in Wyoming he was assigned fire guard duty, which required him to go back and forth in the cold where his extremities became frostbitten. See NOD received 8/16/2018 at page 4. The Board finds that a remand for a new VA examination and medical opinion is necessary due to the conflicting medical evidence of record. The Veteran was provided a VA examination in for his cold injury to the bilateral hands and feet in July 2018. On the disabilities and benefits questionnaire (DBQ), the examiner diagnosed the Veteran with frostbite of the bilateral hands and feet. See C&P Exam received 7/26/2018 at page 1. However, in the medical opinion the examiner who found it was less likely than not the claimed cold injury to the bilateral hands was incurred in or caused by service because there was “no objective evidence of a diagnosis, treatment, or ongoing care of frostbite of the hands”. See C&P Exam received 7/26/2018 at page 1. The nexus opinion is clearly in conflict with the DBQ, and therefore a clarification is needed to adjudicate the issue. In the medical opinion for cold injury to the bilateral feet, the examiner opined that there was no objective medical evidence to support the claim, and therefore a nexus could not be established. See C&P Exam received 7/26/2018 at page 1. This opinion is inadequate since it is based on the absence of confirming medical records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). Although the Veteran provided the abovementioned medical note from Dr. M.A.R., given that the diagnosis is in conflict with the C&P Exam, and that the opinion was based exclusively from the Veteran’s own recitation of his medical history and not a review of his service treatment records. Additionally, the language was conflicting as it states it was “clearly . . . may be a late manifestation. Due to this unclear statement, the Board finds this report triggers VA’s duty to assist, but it does not reach equipoise to grant at this time. For the foregoing reasons, the Board will remand for a new VA examination and medical opinion. These matters are REMANDED for the following action: Schedule the Veteran for a VA examination for his cold injury of the bilateral hands and feet. The examiner must review the claims file. Specifically, the examiner is asked to address the medical note that diagnosed of Raynaud’s phenomenon. See Medical Treatment Record received 3/03/2020. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinions below. Please complete the functional impact section of the report The examiner is asked to provide a response to the following: (a) Is cold injury of the bilateral hands at least as likely as not related to service, including the Veteran’s claimed in-service frostbite? (b) Is cold injury of the bilateral feet at least as likely as not related to service, including the Veteran’s claimed in-service frostbite? A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.