Citation Nr: 21020794 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-28 871 DATE: April 8, 2021 ORDER The petition to reopen the previously denied claims for service connection for residuals of frostbite, a back condition, a foot condition, and a leg condition is granted. The petition to reopen the previously denied claim for service connection for a sinus condition is granted. The petition to reopen the previously denied claim for service connection for hypertension is granted. REMANDED Entitlement to service connection for disability of the neck, back, shoulder, foot and leg, to include as due to cold injury, claimed as arthritis, is remanded. Entitlement to service connection for a sinus disorder, to include headaches, is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. An unappealed December 1961 rating decision denied service connection for a sinus condition and An unappealed October 2006 rating decision denied service connection for a head condition; new and material evidence was not received prior to expiration of the appeal periods; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claims. 2. An unappealed October 2006 rating decision denied service connection for residuals of frostbite, a back condition, a bilateral foot condition, and a bilateral leg condition; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claims. 3. An unappealed October 2006 rating decision denied service connection for hypertension; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The rating decisions dated in December 1961 and October 2006, denying service connection for a sinus condition and a head condition, respectively, are final; and new and material evidence has been received to reopen the claims. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The October 2006 rating decision denying the claim for service connection for residuals of frostbite, a back condition, a bilateral foot condition, and a bilateral leg condition is final; and new and material evidence has been received to reopen the claims. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. 3. The October 2006 rating decision denying the claim for service connection for hypertension is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1951 to October 1952. He additionally served in the Pennsylvania National Guard from March 1949 to April 1951. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. The Veteran submitted a petition to reopen his claims within one year of the January 2013 rating decision denying service connection for osteoarthritis of any joint, including the back, knee, leg, and foot and service connection for a sinus condition, to include headaches. See Correspondence (August 2013). Likewise, the Veteran submitted a petition to reopen his claim within one year of the July 2014 rating decision in which service connection for hypertension was denied. See VA Form 21-0820 Report of General Information (September 2014). As relevant lay and medical evidence was received within one year of both the January 2013 and July 2014 rating decisions, those decisions did not become final, and as the claims remained pending, reopening is not required. 38 C.F.R. § 3.156(b). Relevant to the Veteran's claim of entitlement to service connection for arthritis of multiple joints, to include as due to residuals of frostbite, such was originally adjudicated by the RO as entitlement to service connection for osteoarthritis of any joint. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Accordingly, the Board has expanded the claim for arthritis of multiple joints to include the Veteran’s claims for arthritis of the neck and shoulder, including as due to cold injury. See also, Brokowsky v. Shinseki, 23 Vet. App. 79, 84 (2009) (generally, the scope of a disability claim includes any disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and the other information of record). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.800(c). Whether new and material evidence has been submitted to reopen the previously denied claims for entitlement to service connection for osteoarthritis of multiple joints, to include as due to cold injury; a sinus disability, to include headaches; and hypertension. The Board concludes that the December 1961 rating decision denying the claim for service connection for a sinus condition is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103 (2018). The Board additionally finds the October 2006 rating decision denying service connection for hypertension, residuals of frostbite, bilateral foot condition, bilateral leg condition, back condition, and head condition is final; and that new and m 01aterial evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c) (2012); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103 (2018). In a December 1961 rating decision, service connection was denied for a sinus condition because while the Veteran’s service treatment records (STRs) reflected treatment for a common cold in May 1952, there was no evidence of treatment or diagnosis related to a sinus condition. VA notified the Veteran of this decision in a December 1961 letter and how to appeal. VA received no response to this letter, to include an appeal or new and material evidence prior to expiration of the appeal period. As such, the December 1961 rating decision became final. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. In an October 2006 rating decision, service connection was denied, in pertinent part, for hypertension, residuals of frostbite, bilateral foot condition, bilateral leg condition, back condition, and a head condition. The AOJ concluded that the evidence did not show that the Veteran had in-country service in Korea during the Korean War and available records did not show that he suffered frostbite during service. In addition, the AOJ found the evidence did not show that hypertension had been diagnosed in service or during the one year following service separation. Finally, the AOJ concluded the evidence did not contain current diagnoses of the feet, legs, back and head that were shown to have been incurred in service or were otherwise related to service. VA notified the Veteran of this decision in an October 2006 letter and how to appeal. VA received no response to this letter, to include an appeal or new and material evidence prior to expiration of the appeal period. As such, the October 2006 rating decision became final. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. In a March 2015 rating decision, the RO denied the claims for service connection for hypertension, service connection for head and sinus conditions, to include headaches, and service connection for osteoarthritis of any joint, including the back, knee, leg, and foot, concluding that new and material evidence had not been submitted showing that hypertension and osteoarthritis had been incurred in service or during the one year following service separation and were not otherwise related to service. In addition, the Veteran’s claimed head and sinus conditions were not shown to have been incurred during service nor was there evidence showing head and sinus conditions were otherwise related to service. A claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the AOJ found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Evidence associated with the claims file since the prior final disallowance includes new and material evidence. Specifically, the Veteran provided written statements and testimony during his January 2021 Board hearing that he was treated for all of his claimed conditions at the VA hospital in Wilkes-Barre, Pennsylvania, shortly after discharge from service, beginning in December 1952. See e.g. Correspondence (February 2009). Moreover, a lay statement dated in September 2014 was submitted by his wife attesting to the Veteran’s long-standing symptoms and treatment for hypertension, a sinus condition, and arthritis, in 1957 at the VA hospital in Wilkes-Barre. The Veteran has also submitted photographs and a letter he wrote during service. In addition, the Veteran submitted a statement dated in May 2018 detailing the circumstances of his in-service cold exposure while in Korea. The Board notes that VA treatment records reflect a current diagnosis of osteoarthritis. A June 2014 VA treatment record reflects the Veteran was treated for low back pain which he stated began from an injury sustained during his service in the Korean War; the VA treatment record shows diagnoses of chronic low back pain, lumbar degenerative disc disease and right lumbar radiculitis. A May 2018 VA treatment record reflects diagnoses of neck pain, cervical spondylosis, and cervical radiculopathy. In March 2013, the Veteran reported that he experienced occasional headaches which he attributed to sinus problems. Furthermore, additional, relevant VA treatment records were associated with the claims file in February 2018. A VA treatment record dated in March 1991 shows the Veteran reported that he had headaches since 1968 and believed that his ear, nose and throat (ENT) problems were caused by “freezing in Korea”. The Veteran indicated that he was treated by a private ENT physician. A June 1998 VA treatment record notes the Veteran complained of headaches lasting all days secondary to sinus pressure. The Veteran was also noted to have a history of recurrent sinusitis. The evidence discussed above was not considered at the time of the prior final disallowance; hence, it is new. Further, this evidence cures a prior evidentiary defect; hence, it is material. Therefore, the recent evidentiary submissions are both new and material. Accordingly, the petitions to reopen the previously denied claims are granted. REASONS FOR REMAND 1. Entitlement to service connection for disability of the neck, back, shoulder, foot and leg, including as due to cold injury, claimed as arthritis, is remanded. 2. Entitlement to service connection for a sinus disability, to include headaches, is remanded. 3. Entitlement to service connection for hypertension is remanded. Issues 1-3: The Veteran contends that he developed arthritis in his joints as a result of cold weather exposure during his service in Korea. Hearing Transcript at 11-12, 15 (January 2021). The Veteran has also alleged that his sinus disorder with headaches and hypertension began as a result of cold injury. See VA Form 21-4138 (September 2014) & Hearing Transcript at 12. To ensure that VA has met its duty to assist, remand is necessary to obtain outstanding VA and non-VA treatment records and to afford the Veteran VA examinations triggered. Initially, the Board notes that the claims file contains some of the Veteran’s original STRs from his active duty service, including his April 1951 enlistment and October 1952 separation examinations. The record reflects the AOJ requested the Veteran’s complete STRs and service personnel records in June 2006. However, a response from the National Personnel Records Center (NPRC) that same month, revealed that the Veteran’s medical and dental records were fire related, and that all available STRs were mailed and that his service records could not be reconstructed. The Board recognizes that VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board concludes, however, that the heightened duty to assist has been met with respect to the Veteran’s STRs and service personnel records. All records identified by the Veteran as relating to these particular claims have been obtained, to the extent possible. As previously discussed, the Veteran asserts that he was treated for all of his claimed disabilities at the Wilkes-Barre VA Medical Center shortly after his discharge in 1952. See e.g. Correspondence (August 2013). The record shows that in February 2018, the AOJ requested all of the Veteran’s outpatient treatment records from the Wilkes-Barre VAMC for the period from October 1952 to September 1999. See VA 10-7131 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action (February 2018). Immediately thereafter, in February 2018, VA treatment reports from the Wilkes-Barre VAMC dated from 1991 to 2002 were submitted to the VA Evidence Intake Center, in Janesville Wisconsin. The Board notes however, that the cover sheet attached to the treatment records does not contain a negative response in conjunction with a search for treatment records prior to 1991. In this regard, the claims file contains some VA treatment records dated in November 1952 documenting that the Veteran was treated at the Wilkes-Barre VA hospital for gastrointestinal complaints and in December 1952 and January 1953 for a chronic cough. The Board also notes that although the Veteran testified that he has only sought treatment with VA following service, the record reflects that, in the past, the Veteran has been followed by non-VA medical providers for some of his claimed disabilities. Therefore, to ensure that VA has fully met its duty to assist, further development is necessary to obtain any outstanding treatment records the Veteran has identified. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Next, the Board finds that VA examinations are necessary to adjudicate the claims. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As discussed above, the Veteran has current diagnoses of arthritis related to his neck, low back, right upper extremity and right lower extremity. He also is diagnosed with hypertension and has been treated for complaints related to headaches and sinus pain. The Veteran has related all of his claimed conditions to his in-service cold weather exposure in Korea. The Veteran’s DD Form 214 show that he was awarded the Korean Service Medal with 1 Bronze Service Star and was assigned to C Battery 967th AFA Battalion and the 31st Field Artillery Battalion Sv Battery. Based on these facts, the Board finds the Veteran’s exposure to cold weather in Korea is conceded as consistent with the circumstances of his service. Given the low bar set to trigger VA's duty to obtain a VA examination, the Board finds that the Veteran's lay statements, coupled with the circumstances of his service in Korea, are enough to meet that low bar. Id. Therefore, the Veteran should be afforded an opportunity to present for VA examinations to determine the nature and etiology of his arthritis, sinus condition/headaches and hypertension, and whether any such conditions are related to in-service injury or disease. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms and/or treatment involving his hypertension, arthritis/joint pain, sinus condition, and headaches. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s complete VA treatment records to include those from the Wilkes-Barre VA Medical Center for the period from October 1952 to the Present. 3. Schedule an examination from an appropriate clinician to address the onset and etiology of the Veteran’s arthritis of the neck, right shoulder/upper extremity, low back, right leg/lower extremity and hypertension. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed. The medical opinions should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; and (iii) medical evidence of record to include that favorable and unfavorable. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). (a.) As to each disability, detail the Veteran's reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. (b.) Identify all current disabilities of the neck, low back, right shoulder/upper extremity and right leg/lower extremity. As to each diagnosed disability (neck, low back, shoulder/right upper extremity, right leg/lower extremity and hypertension), opine as to the following: (c.) Whether it at least as likely as not began in service. (d.) As to any arthritis and hypertension, whether it at least as likely as not manifested within one year after the Veteran's service discharge. (e.) Whether it at least as likely as not is related to in-service injury or disease, to include cold injury during his service in Korea. 4. Schedule an examination from an appropriate clinician to address the onset and etiology of the Veteran's sinus condition with headaches. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed. The medical opinions should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; and (iii) medical evidence of record to include that favorable and unfavorable. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). Detail the Veteran’s reported symptoms in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. Opine as to the following: (a.) Whether it at least as likely as not the Veteran’s sinus condition and/or headaches began in service. (b.) Whether it at least as likely as not the Veteran’s sinus condition and/or headaches are related to in-service injury or disease, to include cold injury during his service in Korea. 5. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.