BVA9504778 DOCKET NO. 91-23 877 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether there was clear and unmistakable error in the August 1986 rating decision denying special monthly pension based on the need for the regular aid and attendance of another person. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of frozen feet. 3. Entitlement to service connection for residuals of frozen hands and elbows. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and O. N. ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from July 1943 to June 1944. In July 1988, the Board of Veterans' Appeals (Board) denied service connection for residuals of frozen feet. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This case was last before the Board in February 1994, at which time it was remanded for further development. Following completion of the requested development, a rating decision entered in August 1994 awarded special monthly pension based on the need for the regular aid and attendance of another person, and a Supplemental Statement of the Case was issued the same month. The appeal was returned to the Board in December 1994 and redocketed at the Board in January 1995. The case is now ready for appellate review. It is noted that, pursuant to the February 1994 remand by the Board, the above-addressed rating decision entered in August 1994, in addition to awarding special monthly pension, also denied entitlement to service connection for a psychiatric disability, a cardiovascular disorder, blackouts and residuals of frozen ankles and knees. However, inasmuch as the file does not reflect that the veteran was thereafter notified of the foregoing denials, such consideration is brought to the attention of the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL In asserting that there was clear and unmistakable error in an August 1986 rating decision denying special monthly pension based on the need for the regular aid and attendance of another person, the veteran contends that, notwithstanding the recent grant of such pension benefit, he has had psychiatric disability, which causes him to be severely confused, of many years' duration which, in essence, has made it necessary for him to be assisted by others in the daily activities of life. With respect to the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of frozen feet, the veteran contends that he sustained frozen feet during service in the course of a mid-winter training exercise in which he blacked out for an extended period. He contends, in essence, that recently received reports pertaining to VA outpatient treatment for his feet comprise new and material evidence. As pertinent to his claim for service connection for residuals of frozen hands and elbows, he contends that he currently experiences numbness of both hands as well as stiffness and soreness involving each elbow which he attributes to the inservice cold exposure incident referred to above. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that there was clear and unmistakable error in the August 1986 rating decision denying special monthly pension based on the need for the regular aid and attendance of another person; that the evidence received since July 1988, with respect to the veteran's claim for service connection for residuals of frozen feet, is not new and material, and, therefore, such claim is not reopened; and that the veteran has not submitted evidence of a well grounded claim for service connection for residuals of frozen hands and elbows. FINDINGS OF FACT 1. At the time of the August 1986 rating decision denying special monthly pension based on the need for the regular aid and attendance of another person, the evidence unequivocably demonstrated that the veteran, owing primarily to psychiatric disability, was unable to protect himself from the dangers incident to his daily environment. 2. In July 1988, the Board denied service connection for residuals of frozen feet. 3. The evidence received since the July 1988 Board denial of service connection for residuals of frozen feet is, in part, cumulative to that previously of record and is, in its entirety, insufficient, when viewed in the context of the evidence previously of record, to establish a reasonable possibility of a different outcome. 4. The claim for service connection for residuals of frozen hands and elbows is not plausible. CONCLUSIONS OF LAW 1. Clear and unmistakable error is shown in the August 1986 rating decision in failing to award special monthly pension based on the need for the regular aid and attendance of another person. 38 C.F.R. § 3.105(a) (1993). 2. Evidence received since the July 1988 Board denial of entitlement to service connection for residuals of frozen feet is not new and material and the claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 3. The claim for service connection for residuals of frozen hands and elbows is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Clear and Unmistakable Error, August 1986 Rating Decision The Board notes that, at the time of the August 1986 rating decision denying special monthly pension based upon the need for regular aid and attendance of another person, the record contained a report, apparently received in June or July 1986, of an examination of the veteran for aid and attendance purposes. The Board is cognizant that the report reflects that the veteran had no limitations of his upper extremities and that he was able to engage in activities such as dressing himself and attending to the wants of nature. However, the examination report also reflects that the veteran was then receiving assistance for "daily need[s]," apparently on a regular basis, from a friend as well as his landlady and, most significantly, that the veteran was at that time unable to protect himself, apparently primarily due to confusion associated with psychiatric impairment, from the dangers incident to his daily environment. The latter finding, which bears on a most crucial consideration pertinent to a determination of whether a need for aid and attendance actually exists, is found to be particularly credible when assessed in conjunction with the report, which was also of record in August 1986, of the veteran's June 1986 psychiatric examination by VA, wherein the veteran was noted to be "very disheveled in his appearance" and to manifest findings on mental status examination including hallucinations and "very impaired" retention and recall, prompting the examiner, who diagnosed the veteran as having a chronic schizophrenic disorder, to express an opinion that the veteran was incompetent as well. Moreover, the examiner who performed the aforementioned examination for aid and attendance purposes was of the opinion that the veteran required aid and attendance on a regular basis. No conflicting medical opinion was of record at the time of the August 1986 rating decision. In light of these considerations, the Board concludes that there was clear and unmistakable error in the August 1986 rating decision denying special monthly pension based on the need for the regular aid and attendance of another person. II. New and Material Evidence, Residuals of Frozen Feet Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110. The July 1988 decision by the Board denying service connection for residuals of frozen feet is final based upon the evidence then of record. 38 U.S.C.A. § 7104 (West 1991). However, if new and material evidence is submitted, a previously denied claim must be reopened. 38 U.S.C.A. § 5108. Therefore, the issue for appellate determination is whether the evidence received since the July 1988 decision is new and material under the provisions of 38 C.F.R. § 3.156(a), as interpreted by the United States Court of Veterans Appeals. To be "new," the additional evidence must be more than cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). To be "material," the additional evidence must be relevant and probative and, when viewed in conjunction with the evidence previously of record, sufficient to establish a reasonable possibility of a different outcome. See Id., and Smith v. Derwinski, 1 Vet.App. 178 (1991). In denying service connection for residuals of frozen feet in July 1988, the Board, after observing that a diagnosis of residuals of frostbite of the feet, made on a VA examination performed many years after service, was unsupported by any clinical findings, concluded that the veteran did not have residuals of frozen feet of service origin. Evidence of record in July 1988 included the report of the veteran's examination by VA in May 1987, at which time the veteran related a history of experiencing frostbite of the feet in service. At the time of the examination, the veteran complained of swelling in his feet as well as sensitivity to cold. Findings on physical examination included an absence of hyperhidrosis, full arterial pulses and no interdigital fungal infections; the diagnosis was residuals, frostbite of feet. Also of record was the transcript of a hearing held at the RO in January 1988, at which time the veteran testified that he experienced frozen feet in service in 1944 after he blacked out and was unconscious for a time, subsequent to which he was hospitalized for an extended period at Camp Breckinridge, Kentucky. Evidence added to the record since July 1988 includes a report pertaining to the veteran prepared by the Office of the Surgeon General wherein the veteran is shown to have been hospitalized in service in 1944 for a condition other than residuals of frozen feet. Also recently added to the record are transcripts of hearings held in April 1990 and January 1993, each in conjunction with the current appeal, wherein, collectively, the veteran elaborated that his inservice blackout and exposure to frostbite occurred in a wooded area during a mid-winter training exercise, that he was unconscious for a time, and that, after being found, he was hospitalized for problems including frozen feet for a period of approximately three months. Also recently received is a report pertaining to VA outpatient treatment rendered the veteran in March 1990, at which time he related a history of experiencing frostbite of his legs below the knees during service; and a report of VA outpatient treatment in November 1992, at which time the veteran again alluded to experiencing frostbite during service and complained of tenderness and tingling in his feet. On considering whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of frozen feet, the Board has determined that the evidence added to the record since July 1988 is not new and material. In reaching this determination, the Board would emphasize that the substance of the veteran's testimony at hearings held in April 1990 and January 1993, bearing on the circumstances of his asserted inservice cold exposure, is essentially repetitive of that offered in a January 1988 hearing preceding the July 1988 Board denial of service connection for residuals of frozen feet. Further, the veteran's references on VA outpatient treatment in March 1990 and November 1992 to having experienced frostbite during service are essentially cumulative to the history of the same related by the veteran on VA examination in May 1987. Accordingly, being cumulative to evidence previously of record, the foregoing evidence is not "new." See Colvin, supra. Finally, inasmuch as the recently received VA outpatient treatment reports reflect no assessment of any identified pathology involving either foot, the treatment reports are not probative of current residual disability traceable to the veteran's asserted inservice exposure to frostbite. Given the foregoing observations, the Board concludes that the new evidence, when viewed in the context of the evidence as a whole, is insufficient to establish a reasonable possibility of a different outcome. Accordingly, this evidence is not new and material, and the claim is not reopened. III. Residuals of Frozen Hands and Elbows The threshold question to be answered concerning the veteran's claim for service connection for residuals of frozen hands and elbows is whether he has presented evidence of a well grounded claim, that is, one which is plausible and meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107(a); see Tirpak v. Derwinski, 2 Vet.App. 609 (1992). If an appellant does not submit evidence of a well grounded claim, VA is under no duty to assist him in developing facts pertinent to his claim. See Murphy v. Derwinski, 1 Vet.App. 78 (1990). For the reasons set forth below, the Board finds that the veteran has not met his burden of submitting evidence to support a belief that his claim of entitlement to service connection for residuals of frozen hands and elbows is well grounded. The veteran contends that he currently experiences numbness of both hands as well as stiffness involving each elbow which he attributes to an asserted inservice incident of cold exposure. In this regard, the Board would point out that the veteran's service medical records were apparently destroyed in a fire at the National Personnel Records Center in 1973, an unfortunate circumstance for which the veteran bears no responsibility. However, even assuming, without conceding, that the veteran did experience exposure to frostbite involving his hands and elbows during service, the Board must emphasize that there is no clinical evidence of record relating any current pathology of the hands or elbows to inservice exposure to frostbite. The Board notes that, in the course of VA outpatient treatment in March 1991, the veteran complained of numbness of both hands for the previous year. The assessment was neurologic deficits thought to be a manifestation of conditions including peripheral neuropathy. However, there was no indication that any current pathology of the hands was due to inservice cold exposure. Further, there was no indication that a sensory complaint involving several digits of the left hand, assessed on VA outpatient treatment in October 1991, was in any way traceable to service cold exposure. Inasmuch as the determinative issue, given the specific contention asserted by the veteran, involves medical causation, and in the absence of any medical evidence relating any current pathology of the hands to service cold exposure, a plausible claim for service connection for residuals of frozen hands is not before us. See Grottveit v. Derwinski, 5 Vet.App. 91 (1993). Finally, the Board is aware that, in the course of VA outpatient treatment in March 1990, the veteran gave a history of frostbite involving the elbows during service. However, there was no assessment of any current pathology involving the elbows. Moreover, there is no other medical evidence of residuals of frozen elbows. Consequently, a plausible claim for service connection for residuals of frozen elbows is not presented. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Given the foregoing observations, the Board concludes that the veteran's claim for service connection for residuals of frozen hands and elbows is not well grounded. 38 U.S.C.A. § 5107(a). Finally, although the Board has considered and disposed of the issue of entitlement to service connection for residuals of frozen hands and elbows on a ground different from that of the RO, the veteran has not been prejudiced by the Board's decision. This is because, in assuming that the foregoing claim for service connection was well grounded, the RO accorded the veteran greater consideration than this claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-394 (1993). To remand this case to the RO for consideration of the issue of whether this claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to the veteran. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49, 747 (1992). ORDER Clear and unmistakable error in the August 1986 rating decision denying special monthly pension based on the need for the regular aid and attendance of another person having been found, this aspect of the appeal is granted. New and material evidence not having been submitted, the application to reopen a claim of entitlement to service connection for residuals of frozen feet is denied. Evidence of a well grounded claim not having been submitted, the appeal for service connection for residuals of frozen hands and elbows is dismissed. SHANE A. DURKIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.