Citation Nr: 0007558	
Decision Date: 03/21/00    Archive Date: 03/28/00

DOCKET NO.  98-08 446	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, 
West Virginia


THE ISSUE

Entitlement to an effective date earlier than November 1, 
1996, for a grant of service connection for residuals of 
frostbite of the feet.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Valerie E. French, Associate Counsel






INTRODUCTION

The veteran served on active duty from November 1980 to 
November 1984.  

This appeal arises before the Board of Veterans' Appeals 
(Board) from an April 1998 rating decision of the Huntington, 
West Virginia, Regional Office (RO) of the Department of 
Veterans Affairs (VA), in which service connection was 
granted for residuals of frostbite of the feet, with 
assignment of an evaluation of 30 percent disabling effective 
November 1, 1996.  


FINDINGS OF FACT

1.  A claim for service connection for residuals of frostbite 
of the feet was originally denied by the RO in September 
1986, and the veteran was notified of that decision by letter 
dated September 12, 1986.  As the veteran did not initiate an 
appeal of the adverse decision within one year following 
notification thereof, the September 1986 rating action became 
final.  

2.  In a VA Form 9, received at the RO on August 1, 1996, the 
veteran indicated that he was suffering from residuals of 
frostbite on both feet, which were incurred during active 
service.  The Board has construed this statement as a claim 
to reopen the previously denied and final claim for service 
connection for residuals of frostbite of the feet.  


CONCLUSION OF LAW

Under governing law, the effective date for a grant of 
service connection for residuals of frostbite of the feet is 
August 1, 1996.  38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp. 
1999); 38 C.F.R. § 3.400 (1999).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran contends that an effective date prior to November 
1, 1996, is warranted for a grant of service connection for 
residuals of frostbite of the feet.  Specifically, he has 
argued that this award should be made effective retroactively 
to 1986, when he initially filed a claim for service 
connection for frostbite residuals.  

I.  Background

Service medical records show diagnosis and treatment for 
first degree frostbite, affecting both feet, in March 1984.   

On VA compensation and pension examination in June 1986, the 
veteran gave a history of severe frostbite in 1984.  
Diagnoses included history of frostbite of feet with no 
obvious residual effects.  

In a September 1986 rating decision, the RO denied service 
connection for residuals of frostbite of the feet by finding 
that there was no residual evidence of frostbite noted in 
military service.  By letter dated September 12, 1986, the 
veteran was informed of the adverse decision, and there is no 
evidence of record indicating that he initiated an appeal 
within one year following notification thereof.  As such, the 
September 1986 rating decision became final in accordance 
with 38 U.S.C.A. § 7104 (West 1991 & Supp. 1999), 38 C.F.R. 
§ 20.1103 (1999). 

On a VA Form 9 received at the RO on August 1, 1996, the 
veteran indicated that while serving at Fort Knox, Kentucky, 
he sustained frostbite on both feet, and as a result, the 
skin on those feet was dead and it was painful to walk.  

In a statement received at the RO on November 1, 1996, the 
veteran reiterated that he suffered frostbite on both feet 
during active service in 1984, and that the skin on his feet 
had become so thick that it was sometimes painful to walk.  
The RO has construed this statement as the veteran's claim to 
reopen the previously denied and final claim for service 
connection for residuals of frostbite of the feet.  

In statements on appeal, the veteran has complained of 
burning of the feet.  On VA examination of the feet in March 
1998, objective findings included hyperhidrosis, paresthesia, 
edema, discoloration, thickening of the skin of both feet, 
pain on manipulation, and diminished ligamentous strength.  A 
diagnosis of residuals of frostbite, both feet, is shown.  

In an April 1998 rating decision, service connection was 
granted for residuals of frostbite of the feet, and an 
evaluation of 30 percent disabling was assigned effective 
November 1, 1996.  The RO indicated that this was the date on 
which the veteran attempted to reopen his claim for service 
connection for residuals of frostbite of the feet.  Separate 
ratings of 30 percent disabling were made effective as of 
January 12, 1998, on the basis of regulatory amendment 
(changes in the diagnostic criteria).  

In the May 1998 Statement of the Case, the RO indicated that 
in order for the veteran to reopen the September 1986 claim, 
it was necessary that he submit new and material evidence.  
The RO noted that the evidence submitted in connection with 
the reopened claim on November 1, 1996, was considered new 
and material evidence, and thus, November 1, 1996 was the 
date on which the veteran reopened his claim for service 
connection for residuals of frostbite of the feet.  

In a VA Form 9 submitted to the RO in May 1998, the veteran 
indicated that in July 1986, he filed a claim requesting 
service-connected disability for residuals of frostbite of 
the feet, and in September 1986 he was notified that his 
request was denied.  The veteran also indicated that in 1996 
he was seen by a physician who told him that the problem with 
his feet might be due to frostbite residuals.  According to 
the veteran, his condition has not changed since 1984; the 
physician who examined him in the 1980's misdiagnosed him; 
and based on these facts, he did not feel that he should be 
denied what should have been awarded to him in 1986.  

II.  Analysis

Unless otherwise specifically provided in Chapter 51 of Title 
38 of the United States Code (1991), the effective date of an 
award based on a claim for compensation which is reopened 
after final adjudication shall be fixed in accordance with 
the facts found, but shall not be earlier than the date of 
receipt of application therefor.  38 U.S.C.A. § 5110(a) (West 
1991).  When an award of service connection is granted upon 
new and material evidence which is received after the final 
disallowance of the veteran's initial claim and which does 
not encompass service department records, the effective date 
of such an award shall be the date of receipt of the 
veteran's reopened claim or the date on which entitlement 
arose, whichever is later.  38 C.F.R. § 3.400(q), (r) (1999); 
Lapier v. Brown, 5 Vet. App. 215 (1993); Waddell v. Brown, 5 
Vet. App. 454, 456 (1993).  

In this instance, service connection for residuals of 
frostbite of the feet was granted in 1998 on the basis of new 
and material evidence, which was submitted to reopen the 
previously denied and final claim of September 1986.  
According to the applicable statutes and regulations, an 
award granted on the basis of a reopened claim may not be 
made effective prior to the date of receipt of the reopened 
claim. Waddell, supra; see also 38 U.S.C.A. § 5110 (a) (West 
1991); 38 C.F.R. § 3.400(q)(1)(ii) (1999).  Thus, the grant 
of service connection for residuals of frostbite of the feet 
cannot, by law, be made retroactive to the date of the 
original claim in 1986.  

In light thereof, the appropriate effective date for the 
award of service connection for residuals of frostbite of the 
feet is the date of receipt of the reopened claim or the date 
entitlement arose, whichever is later.  As residuals of 
frostbite have been adjudicated to have been incurred during 
active service, which ended in 1984, in this case the date of 
the reopened claim will clearly be the later date.  

Having the reviewed the record, the Board is of the opinion 
that the veteran's reopened claim was submitted via an August 
1, 1996 VA Form 9, in which he referred to the in-service 
history of frostbite in his feet and the currently manifested 
residuals thereof.  The Board notes that this statement 
contains virtually the identical information as the November 
1, 1996 statement which the RO accepted as new and material 
evidence and which was construed as a reopened claim for 
service connection for residuals of frostbite.  As such, the 
Board finds that the date of the veteran's reopened claim for 
service connection for residuals of frostbite of the feet was 
August 1, 1996, and as such, an effective date of August 1, 
1996 is appropriate for the grant of service connection for 
residuals of frostbite of the feet.  


ORDER

An effective date of August 1, 1996, is warranted for the 
award of service connection for residuals of frostbite of the 
feet.  


REMAND

In September 1996, the RO issued a rating decision which, in 
part, denied reopening claims for service connection for a 
left knee disorder and a hearing loss.  A notice of 
disagreement covering these issues was received in November 
1996.  A statement of the case on these issues has yet to be 
generated.  

Under these circumstances, the decisions of the Court require 
the Board to REMAND the issues to the RO.  

The RO must issue a statement of the case 
on the issues of:  

1.  Whether the veteran has submitted new 
and material evidence to reopen a claim 
of entitlement to service connection for 
a left knee disorder; and 

2.  Whether the veteran has submitted new 
and material evidence to reopen a claim 
of entitlement to service connection for 
a hearing loss disability.  

If the veteran files a timely substantive appeal, the Board 
will have appellate jurisdiction and the RO should process the 
claims in accordance with the current appellate procedures.  
However, the Board will not have jurisdiction unless the 
veteran files a timely substantive appeal.  38 U.S.C.A. § 7104 
(West 1991).  The Board intimates no opinion as to the 
ultimate outcome of this case.  

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, directs the ROs to provide 
expeditious handling of all cases that have been remanded by 
the Board and the Court.  See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.



		
	CLIFFORD R. OLSON
	Acting Member, Board of Veterans' Appeals