BVA9505705 DOCKET NO. 93-13 750 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a psychiatric disability. 2. Entitlement to an increased rating for residuals of frozen feet, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active service from February 1943 to November 1945. He was a prisoner of war (POW) from October 1, 1944 to April 22, 1945. This appeal is taken from a Regional Office (RO) determination in September 1990 which found that new and material evidence had not been received to reopen a claim for entitlement to service connection for a psychiatric disability, and which confirmed and continued a 10 percent evaluation for residuals of frozen feet. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that additional evidence submitted since a prior unappealed RO denial of entitlement to service connection for a psychiatric disability is new and material, and that the service-connected residuals of frozen feet are more disabling than the current rating reflects. 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 file. 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 of Veterans Appeals (Board) that new and material evidence has not been submitted to reopen a claim for entitlement to service connection for a psychiatric disability and that the preponderance of the evidence is against a claim for an increased rating for residuals of frozen feet. FINDINGS OF FACT 1. By an unappealed RO determination in March 1987, a claim for entitlement to service connection for a psychiatric disability was denied. 2. Evidence received since the March 1987 RO denial does not raise a reasonable possibility of allowance of the claim for service connection for a psychiatric disability. 3. All evidence necessary for an equitable adjudication of the issue of entitlement to an increased rating for residuals of frozen feet has been obtained. 4. The service-connected residuals of frozen feet have not been shown to be manifested by more than mild symptoms. 5. The service-connected residuals of frozen feet do not present such an exceptional or unusual disability picture so as to render the regular schedular criteria inapplicable. CONCLUSIONS OF LAW 1. The unappealed RO determination in March 1987 which denied entitlement to service connection for a psychiatric disability is final, and new and material evidence has not been submitted to reopen the claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 3.156(a) (1994). 2. The criteria for an evaluation in excess of 10 percent for residuals of frozen feet have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code 7122 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. NEW AND MATERIAL EVIDENCE According to the United States Court of Veterans Appeals (Court), the well-groundedness requirement shall not apply with regard to reopening disallowed claims and revising prior final determinations. Jones v. Brown, 7 Vet.App. 134 (1994). As indicated above, the veteran contends that the evidence received subsequent to a March 1987 unappealed RO denial of service connection for a psychiatric disability, is new and material, and serves to reopen his claim therefor. After a review of that evidence, considered in conjunction with the evidence that had been of record as of March 1987, the Board finds that his contentions are not supported by the record, and that his claim has not been reopened. The evidence of record at the time of the March 1987 RO denial of service connection for a psychiatric disability included former POW medical history reports completed by the veteran in August 1984, August 1985, and January 1986, and reports of Department of Veterans Affairs (VA) examinations in November 1985 and December 1986. The veteran's service medical records are not available. In August 1984, the veteran completed a former POW medical history report, wherein he indicated that during his captivity he had experienced prolonged periods of depression and periods of nightmares, confusion, or delirium. He also indicated that he had found it difficult to readjust to civilian post-service life. He noted he had had 30 years of employment since military discharge, with the longest period of continuous employment having been 10 years. He reported that he was not injured during captivity and did not work during captivity. The veteran completed a claim for disability benefits in 1985, wherein he indicated no post-service psychiatric treatment. However, he indicated his "nerves [had] been bad" since having been a POW. He reported he had remained married to one wife since 1942. In August 1985, the veteran completed a former POW medical history report, wherein he reported essentially the same medical history as he reported in August 1984, except that he indicated that he had additionally experienced prolonged periods of fear and anxiety, and loneliness and isolation from other POW's, during his captivity. He denied any history of thoughts of suicide or attempts at suicide. The veteran underwent a former POW VA protocol psychiatric examination in November 1985. The veteran reported he had received no mistreatment during captivity, except for being "starved and frozen." He reported that he had had severe and frequent nightmares, and sleepwalking, since military discharge. The sleepwalking ended after one and one-half years. He reported he noticed depression "quite a bit - sometimes for a day, sometimes longer." He had received no therapy for his depression. No psychiatric abnormality was identified on mental status examination. The examiner felt that the veteran's current depression, which reportedly lasted for a few hours, or occasionally for a day, was not severe enough to require any further recommendation. The final diagnoses included intermittent mild depression, with no treatment required. The veteran's reported medical history was unchanged from that previously noted, when he again completed a former POW medical history report, in January 1986. Based on the foregoing evidence, the RO in its determination in March 1987, found that the currently demonstrated intermittent depression had not been shown to be manifested to a compensable degree, and that, as such, service connection was not warranted. The veteran did not appeal that determination. Prior unappealed RO decisions are final and may be reopened only upon the receipt of additional evidence which, under the applicable statutory and regulatory provisions, is both new and material. "New" evidence means more than evidence that has not previously been included in the claims folder and must be more than merely cumulative, in that it presents new information. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In addition, the evidence, even if new, must be material, in that it is relevant and probative; that is, it raises a reasonable possibility of allowance of the claim when viewed in conjunction with the record as a whole. The evidence received subsequent to the March 1987 RO denial consists of subsequently dated medical records, including reports of psychiatric and psychological evaluations in July 1990. These records demonstrate that a psychiatric disability is not currently demonstrated. Inasmuch as service connection may not be granted for disability not presently demonstrated. The additional evidence does not raise a reasonable possibility of allowance of the claim for service connection for a psychiatric disability, when considered in conjunction with the evidence that had been of record in March 1987. As such, the Board finds that the additional evidence, considered in conjunction with the evidence previously of record, is not new and material so as to warrant reopening of the claim. II. RESIDUALS OF FROZEN FEET The veteran's claim for entitlement to an increased rating for residuals of frozen feet is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). The Board finds that he has presented a claim that is plausible. The Board is satisfied that all relevant facts have been properly developed. There is no indication of outstanding additional evidence. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Although the VA must consider the entire record, the most pertinent evidence is those documents created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 4.1 (1994). Service connection was established for residuals of frozen feet by a RO determination in March 1987. A 10 percent evaluation was assigned effective from October 1, 1986. The 10 percent evaluation has been continued to date. The veteran's current 10 percent evaluation contemplates residuals of frozen feet manifested by mild symptoms, chilblains. A 30 percent evaluation is warranted when the residuals include persistent moderate swelling, tenderness, redness, etc. A 50 percent evaluation contemplates loss of toes or parts and persistent severe symptoms. 38 C.F.R. § 4.104, Diagnostic Code 7122. The veteran underwent a VA podiatry examination in July 1990. The veteran complained his left foot stayed cold and numb with pain. Reportedly, shoes did not affect his frostbite residuals condition. Physical examination revealed the bilateral pedal pulses were within normal limits, and a normal skin temperature was noted. He had slightly decreased sensorium of the left low leg and foot, with marked erythema. There was no tenderness or edema. Muscle strength and range of motion of the lower extremities were normal. His gait was unremarkable, without limp. X-ray examination revealed mild osteophytic and arthritic changes of the lesser tarsus, characterized as probably secondary to neuropathy. The impression was left foot polyneuropathy, probably secondary to frostbite trauma. The veteran was evaluated at a VA vascular clinic in October 1991, when the impressions were no evidence of limb-threatening ischemia and no objective vascular compromise. Physical examination showed the feet to be warm and viable. The left femoral pulse was +2/4. The veteran underwent a VA examination of his feet in October 1991. He complained that his left foot stayed cold and numb and that pain radiated through it every now and then. Physical examination revealed the veteran was able to heel and toe stand. He was able to ambulate with a normal gait with no complaints. The skin of the feet appeared equal and within normal limits, bilaterally. His functions were totally within normal limits. Neurological examination of the feet was totally within normal limits. He had pulses of 2/4 dorsalis pedis and posterior tibial, bilaterally. His feet were warm and equal, bilaterally. The skin color was within normal limits. He had onychomycosis change of the nails, bilaterally. His sensory function was equal and within normal limits, bilaterally, with normal position sense. He had no bony change. X-ray examination of the feet reportedly revealed no bone or joint disease. The diagnosis was frostbite of the left lower extremity with a normal examination at time of his visit. The examiner stated he would question a sympathetic-type syndrome secondary to the initial frostbite injury. VA X-ray examination of the feet in August 1992 again revealed no evidence of bone or joint disease. On neurologic examination in November 1992, the veteran reported he had had no amputation secondary to the service-connected frostbite. He complained that his left foot stated cool from the toes up to the ankle. He indicated that, at times, his foot became numb when he sat for longer than 15 minutes at a time. He also stated that, when he stood up, he tended to turn his foot inward for the first couple of steps. The veteran felt that his left foot had become a "little bit" cooler over the past several years. Physical examination revealed the deep tendon reflexes were one-plus at the ankles. Sensory testing showed diminished pinprick by approximately 40 percent over the right foot. The skin temperature was equal to touch, bilaterally. There was no evidence of atrophy or necrosis of the toenails or skin of the left foot. Thermal sensation felt warm on the left foot, but not on the right. Walking was unremarkable. On attempting to heel and toe walk, the veteran seemed to have more difficulty with his right leg. The examiner felt this was most likely due to a disability not at issue. The peripheral pulses and dorsalis pedis were intact and two to three plus, bilaterally. The veteran had arterial filling of the capillaries of the toes of the left foot equal to the right foot. There was mild venous dilatation of the blood vessels of both feet and the distal lower extremities. It was the examiner's impression that, based on the history and current clinical findings, the veteran appeared to have had a minor frostbite in service. It was noted that, other than the sensation of coldness, there was not evidence of objective neurological deficit, currently. There was no evidence of functional deficit. A VA neuromuscular thermography, performed in September 1992, revealed asymmetry of thermal emission in the feet. Three sets of images demonstrated the right dorsal foot area was cooler than the left. There was also decreased thermal emission in the right lateral calf, as compared to the left. The impression was abnormal thermogram. There has been no clinical demonstration of amputation associated with the service-connected residuals of frozen feet. Indeed, the medical evidence contains a specific medical history, as reported by the veteran, that there had been no such amputation. As such, a 50 percent evaluation is not warranted. Additionally, the reported clinical findings are not consistent with persistent moderate swelling, tenderness, or redness. Indeed, it was consistently reported on examinations that there was no tenderness and that the skin color of the feet was equal. Although marked erythema was reported on VA examination in July 1990, subsequent examinations revealed no objective vascular compromise. As such, a 30 percent evaluation is not warranted. The veteran's complaints of foot numbness and coldness are not shown to be more than mild and, as such, are considered in his current disability rating. In view of the foregoing, the Board finds that the preponderance of the evidence is against an increased rating for the service-connected residuals of frozen feet. There has been no demonstration that the service-connected residuals of frozen feet have markedly interfered with the veteran's history of employment nor resulted in frequent hospitalization, so as to render the regular schedular criteria inapplicable. ORDER New and material evidence not having been received to reopen a claim for service connection for a psychiatric disability, the appeal is denied. An increased rating for residuals of frozen feet is denied. U. R. POWELL 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.