Citation Nr: 21027459 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-22 042 DATE: May 5, 2021 ORDER New and material evidence having been received, the claim for service connection for residuals of cold injury in the left foot is reopened. Entitlement to service connection for residuals of cold injury in the left foot, diagnosed as left lower extremity peripheral neuropathy, is granted. REMANDED Entitlement to service connection for residuals of frostbite in the bilateral hands is remanded. Entitlement to service connection for bilateral hearing loss (BHL) is remanded. FINDINGS OF FACT 1. An unappealed September 2007 rating decision denied service connection for residuals of frostbite, bilateral feet. 2. Evidence added since the September 2007 rating decision is new and relates to an unestablished fact necessary to substantiate the claim. 3. Resolving all reasonable doubt in favor of the Veteran, his diagnosed peripheral neuropathy of the left lower extremity is etiologically related to his cold injury in service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service connection for residuals of cold injury in the left foot. 38 U.S.C. § 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for residuals of cold injury in the left foot have been met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from May 1976 to June 1980. This matter comes to the Board of the Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) July 2014 rating decision that denied entitlement to service connection for BHL and a July 2018 rating decision that denied reopening the issue of service connection for residuals of frostbite bilateral feet and denied service connection for residuals of frostbite bilateral hands. In September 2014, a timely notice of disagreement (NOD) was received for the issue of service connection for BHL. An April 2016 statement of the case (SOC) was issued, and the Veteran perfected his appeal in May 2016. An October 2018 Board decision remanded the issue for a new VA examination, and an August 2020 Supplement Statement of the Case (SSOC) was issued. In July 2018, a NOD was received for the issues of service connection for residuals of frostbite bilateral feet and hands. A November 2019 SOC was issued, and in December 2019 the Veteran perfected his appeal. An April 2020 rating decision granted service connection for peripheral neuropathy right lower extremity (claimed as residuals of frostbite/cold injury) with an evaluation of 20 percent effective May 9, 2018. Thus, the issue on appeal has been recharacterized as entitlement to service connection for residuals of frostbite in the left foot. NEW AND MATERIAL EVIDENCE Laws and regulations If a claim of entitlement to 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. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. 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 be neither cumulative nor 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. See 38 C.F.R. § 3.156(a). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b). Furthermore, 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 but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. See 38 C.F.R. § 3.156(c)(1). New and material evidence having been received, the claim for service connection for residuals of frostbite in the left foot is reopened. The November 2002 rating decision denied the Veteran's original claim for service connection for residuals of frostbite, bilateral feet. The RO determined that although there was a record of treatment in service for frostbite, bilateral feet, no permanent residual, or chronic disability subject to service connection is shown. The Veteran did not appeal this decision and new and material evidence was not received during the appellate period. In March 2007, the Veteran filed a request to reopen his claim for service connection for residuals of frostbite, bilateral feet. The September 2007 rating decision denied reopening the issue of service connection for residuals of frostbite, bilateral feet as the evidence submitted was not new and material. Again, the RO determined that although there was a record of treatment in service for frostbite, bilateral feet, no permanent residual, or chronic disability subject to service connection is shown. The Veteran did not appeal this decision and new and material evidence was not received during the appellate period. In May 2018, the Veteran filed a request to reopen his claim for service connection for residuals of frostbite, bilateral feet. New evidence and material evidence includes a September 2019 VA examination that shows a new diagnosis of peripheral neuropathy in the bilateral lower extremities. Thus, the claim for service connection for residuals of frostbite in the left foot is reopened. SERVICE CONNECTION Laws and regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In this regard, the evidence must demonstrate (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; (3) and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167-67 (Fed. Cir. 2004). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. See 38 C.F.R. § 3.303(d). Entitlement to service connection for residuals of frostbite in the left foot is granted. The Veteran was diagnosed with peripheral neuropathy in the left lower extremity in a September 2019 VA examination. Thus, the first element of Shedden is met as the Veteran has a current disability. The Veteran reported wearing shoes with holes during cold weather training and experiencing numbing and pain in his left and right foot. See June 2018 Cold Injury Diagnosis and September 2019 VA examination. Service treatment records (STRs) show that in April 1979, the Veteran was seen for his right foot pain. Although, the Veteran was only seen for his right foot pain, his statements concerning the incident are consistent with the evidence of record. The Veteran reported that he sustained a cold injury in the field because he was wearing boots with holes and he experienced numbness in his feet. The Board finds that the Veteran is a credible and reliable historian as to the in-service incurrence. See Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Thus, the Board finds that the Veteran experienced cold exposure to his left foot in service, and the second element of Shedden is met. As to the third element of Shedden, records include a negative nexus opinion. In September 2019, a VA medical opinion was provided. The VA medical examiner determined that the Veteran's diagnosed peripheral neuropathy of the left lower extremity was less likely than not incurred or caused by his in-service cold exposure, citing the lack of documentation in his STRs of a left foot cold injury. The VA medical examiner opined that the Veteran's right lower extremity peripheral neuropathy is at least as likely as not related to cold exposure in service, citing the documentation in the Veteran's STRs of a right foot cold injury. Thus, the medical opinion seems to be predicated on whether there is sufficient evidence of an in-service cold exposure, as the VA examiner offered a positive nexus opinion for the right foot but a negative opinion for the left foot. The Board finds that the Veteran's report of an in-service cold exposure to his bilateral feet is credible. He has consistently stated throughout the record that during basic cold weather training he had holes in his boots and started feeling pain and numbness in both of his feet. Thus, giving the Veteran the benefit of the doubt, the Board finds that the third Shedden element has been satisfied. As all three Shedden elements have been satisfied, the Veteran is entitled to service connection for peripheral neuropathy in the left lower extremity. REASONS FOR REMAND 1. Entitlement to service connection for residuals of frostbite in the bilateral hands is remanded. In the September 2019 VA medical opinion, the VA medical examiner opined that the Veteran did not have a diagnosis of right hand cold injury or a left hand cold injury. However, the September 2019 VA examination showed that the Veteran reported symptoms of pain, cold sensitivity, and numbness in his bilateral hands. Pain alone resulting in functional impairment is in fact a disability and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In light of Saunders, the Board finds that a remand for an addendum opinion is warranted for the examiner to assess whether the Veteran's reported pain, cold sensitivity, and numbness in his bilateral hands are residuals of his reported cold exposure in service, and if so, whether the symptoms result in functional impairment that affects his earning capacity. 2. Entitlement to service connection for BHL is remanded. An October 2018 Board decision remanded the claim for entitlement to service connection for BHL for a new VA examination as the Board determined that the February 2014 VA examination was inadequate. In December 2018, the Veteran was afforded another VA examination. The VA examiner opined that because the Veteran's separation medical examination did not have an audiogram recorded, it cannot be determined if the Veteran acquired right ear hearing loss or additional left ear hearing loss while he was in the military or if it occurred after he was discharged. The Board finds that the opinion is inadequate as the relevant issue in entitlement to service connection is not only whether a condition onset in service, but also whether it is causally related to service. A veteran may establish the required nexus between his current hearing loss disability and his term of military service if he can show that his hearing loss disability resulted from acoustic trauma. Godfrey v. Derwinski, 2 Vet. App. 352 (1992). The absence of documented hearing loss in service is not fatal to a service connection claim for hearing loss. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992); see also Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (evidence of a current hearing loss disability meeting the requirements of 38 C.F.R. § 3.385 and a medically sound basis for attributing such disability to service may serve as a basis for a grant of service connection for claimed hearing loss). On remand, the Board finds that an addendum opinion is needed as to whether it is at least as likely as not that the Veteran's current hearing loss is causally related to his service, to include exposure to noise as a mortarman, which the Veteran has reported included firing weapons for training purposes including a 106 mm recoilless rifle, 81 mm mortars, M72 LAW, claymore mines, and hand grenades. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the VA medical examiner who conducted the September 2019 VA examination, or if unavailable, another suitably qualified examiner. A copy of this remand must be provided to and reviewed by the examiner along with the claims file. The examiner is specifically asked to answer the following: (a.) Whether the Veteran's reported symptoms of pain, cold sensitivity, and numbness in his hands are at least as likely as not causally related to his reported cold exposure in service. (b.) Whether there is any functional impairment associated with the Veteran's complaints of pain, cold sensitivity, or numbness in his bilateral hands. A full rationale should be provided for all opinions expressed. If it is not possible to provide an opinion without resorting to mere speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Obtain a VA opinion as to whether it is at least as likely as not that the Veteran's right or left hearing loss (a.) Had its initial onset in service or within a year of service discharge. (b.) Is etiologically related to active service, to include noise exposure as a mortarman, which the Veteran has reported included firing weapons for training purposes including a 106 mm recoilless rifle, 81 mm mortars, M72 LAW, claymore mines, and hand grenades. A copy of this remand must be provided to and reviewed by the examiner along with the claims file. A full rationale should be provided for all opinions expressed. (Continued on the next page) If it is not possible to provide an opinion without resorting to mere speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Amanda Christensen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.