Citation Nr: 21025503 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 19-38 842 DATE: April 28, 2021 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral lower extremity peripheral vascular disease, and to that extent only the claim is granted. REMANDED Entitlement to service connection for bilateral lower extremity peripheral vascular disease is remanded. FINDINGS OF FACT 1. A May 2016 rating decision denied service connection for bilateral peripheral vascular disease of the lower extremities. The Veteran was informed in writing of the adverse decision and of his appellate rights by letter in May 2016. The Veteran did not timely perfect an appeal, and the decision became final. 2. The evidence received since the May 2016 rating decision was not of record at the time of the decision and is considered new or material. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for bilateral peripheral vascular disease of the lower extremities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1953 through July 1955. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran, the Veteran’s spouse, and a relative testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral lower extremity peripheral vascular disease VA will reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). A May 2016 rating decision denied service connection for bilateral peripheral vascular disease of the lower extremities. The Veteran was informed in writing of the adverse decision and his appellate rights in May 2016. In June 2016 the Veteran submitted a notice of disagreement and a statement of the case was provided in April 2018. The Veteran did not file a timely substantive appeal and the May 2016 decision became final. 38 C.F.R. § 19.52. The Veteran initiated a request to reopen the claims for peripheral vascular disease in July 2018. Evidence received since the final decision includes a June 2018 statement in which the Veteran detailed not being able to feel his feet while in service, but not going to seek medical attention due to the seriousness of injuries of others. At the time of the previous decision there were no statements regarding any connection of the claimed disabilities to service. Also, at the February 2021 hearing, the Veteran testified that the harsh winters in Korea with standard issue clothing caused the leg disabilities. The Veteran stated that after he returned from Korea, he continued to experience poor circulation and cold feet. The Veteran reported that he did not report to sick call for numbness during service because he did not want to be targeted by other soldiers for being weak. The statements regarding onset in service and symptoms thereafter support the Veteran’s contentions of continuity of symptomatology. The Board finds that is new evidence that was not considered in the previous final denial. And it is material as it suggests a continuity of symptomatology. Accordingly, the Board finds that the evidence received since the May 2016 rating decision is both new and material, and the claim is reopened. To that extent only, the claim is allowed. REASONS FOR REMAND 1. Entitlement to service connection for bilateral lower extremity peripheral vascular disease is remanded. At the February 2021 hearing, the Veteran asserted that the claimed disabilities were the result of a cold injury in service. The witnesses provided statements about observing the numbness and coldness the Veteran experienced following separation from service. The Veteran has not received a VA examination for the purpose of determining if the claimed disabilities are the result of active service. As a result, an examination is necessary. The service medical records are not of record and were apparently destroyed in a 1973 fire at the National Personnel Record Center. When service records are lost or missing or destroyed, in conjunction with a heightened duty to assist, VA must inform the Veteran that he can submit alternative sources in place of the missing service records. Washington v. Nicholson, 19 Vet. App. 362 (2005); Dixon v. Derwinski, 3 Vet. App. 261 (1992). Examples of alternate evidence include any military records; statements from service medical personnel; lay certificates or affidavits; state or local accident and police reports; employment physical examination reports; medical evidence from civilian or private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examinations reports. There is no indication that the Veteran received notice of alternative evidence he could submit. The matters are REMANDED for the following action: 1. Send the Veteran a notice letter notifying that he can submit alternative sources in place of the missing service medical records. Advise him that alternate evidence includes, but it not limited to, any military records; statements from service medical personnel; lay certificates or affidavits, including from former fellow servicemen; state or local accident and police reports; employment physical examination reports; medical evidence from civilian or private hospitals, clinics, and physicians where or by whom a Veteran was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; and insurance examinations reports. 2. Contact the National Personnel Records Center (NPRC), RMC, or any other appropriate facility and attempt to obtain the Veteran’s missing service medical records. If unsuccessful, the reporting agency should acknowledge that the records sought do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of the records must be verified and should be documented for the record. Schedule the Veteran for a VA examination of claimed bilateral lower extremity peripheral vascular disease. The examiner must review the claims file and note that review in the report. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner should discuss the Veteran’s lay statements regarding the history and continuity of symptomatology. The examiner should provide a complete rationale for any opinions offered. If a diagnosis cannot be provided, but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider those symptoms a disability for the purpose of providing the requested opinions. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any bilateral lower extremity neurologic disabilities are related to service, or any event, injury, or disease during service, to including a cold weather injury? The examiner should provide a rationale to support the opinion. In providing the requested opinion, the examiner should consider the Veteran’s description of the injury in service, and of symptoms during and since service. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of the current disability, that should be noted. The examiner should express an opinion as to whether the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are inconsistent with medical knowledge or implausible. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.