Citation Nr: 1306141	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  09-42 235A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for right lower extremity axonal type motor polyneuropathy, and if so, whether service connection is warranted.

2. Whether new and material evidence has been received to reopen a previously denied claim for service connection for left lower extremity axonal type motor polyneuropathy, and if so, whether service connection is warranted


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran served on active duty from November 1967 to November 1969.  He is the recipient of the Combat Action Ribbon. 

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In December 2012, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge, via videoconference.  A transcript of the hearing is associated with the claims file.  

The service connection issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. In a final rating decision issued in February 2006, the RO denied claims of entitlement to service connection for right and left lower extremity axonal type motor polyneuropathy.

2. Evidence added to the record since the final February 2006 rating decision is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the Veteran's claims. 


CONCLUSIONS OF LAW

1. The February 2006 rating decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005) [(2012)].

2. New and material evidence has been received to reopen a claim of entitlement to service connection for right lower extremity axonal type motor polyneuropathy.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3. New and material evidence has been received to reopen a claim of entitlement to service connection for left lower extremity axonal type motor polyneuropathy.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As the Board's decision herein to reopen the previously denied claims for service connection for right and left lower extremity axonal type motor polyneuropathy is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) and the implementing regulations as to those claims.

In a rating decision issued in February 2006, the RO denied claims for service connection for right and left lower extremity axonal type motor polyneuropathy on the basis that the competent evidence did not demonstrate a relationship between the Veteran's currently diagnosed peripheral neuropathy and his military service or show that he was first diagnosed with the disability within one year of his exposure to herbicides.  Within one year, the Veteran submitted additional evidence, which relates back to the February 2006 rating decision, and if relevant, could render the decision not final.  See 38 C.F.R. § 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); Jennings v. Mansfield, 509 F.3d 1362 (2007) (a claim becomes final and subject to a motion to reopen only after the period for appeal has run, and any interim submissions before finality must be considered by the VA as part of the original claim).  However, the claim was again adjudicated and denied in a February 2007 rating decision, which also related back to the February 2006 decision.  No notice of disagreement with the February 2006 rating decision was received.  The next communication from the Veteran with regard to his peripheral neuropathy claims was an August 2008 claim for service connection, which is the subject of this appeal.  Accordingly, the Board determines that the February 2006 decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2005) [(2012)].

Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002).  The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.

New evidence means existing evidence not previously submitted to agency decisionmakers.  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.  38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

Since the final February 2006 rating decision, the Veteran has submitted additional VA treatment records, disability records from the Social Security Administration, and personal statements, to include testimony at the December 2012 Board hearing.  The Board finds that the VA treatment records contain evidence that is both new and material.  

Specifically, at the time of the February 2006 decision, the Veteran's service treatment records and VA treatment records showing a diagnosis of peripheral neuropathy of the right and left lower extremities were in the claims file.  The missing element was evidence of a relationship between such disabilities and military service.  

Among the additional medical evidence submitted is a September 2010 VA treatment note by a primary care physician, which includes a diagnosis of peripheral neuropathy, probably a combination of Agent Orange and EtOH-associated.  Thus, this evidence addresses the missing element of the claim, i.e., a relationship to service.  Thus this evidence is new in that it is neither cumulative nor redundant of the evidence of record in February 2006, and it is material as it raises a reasonable possibility of substantiating the claims for service connection for right and left lower extremity peripheral neuropathy.  

Therefore, the Board concludes that evidence added to the record since the February 2006 denial is both new and material and that the requirements to reopen the claims of entitlement to service connection for right and left lower extremity axonal type motor polyneuropathy have been met.  Therefore, the claims to reopen are granted.


ORDER

New and material evidence having been submitted, the claim to reopen the claim for service connection for right lower extremity axonal type motor polyneuropathy is granted.

New and material evidence having been submitted, the claim to reopen the claim for service connection for left lower extremity axonal type motor polyneuropathy is granted.


REMAND

Generally, when the Board reopens a claim that the RO did not, the case must be remanded for RO consideration.  Hickson v. Shinseki, 23 Vet. App. 394 (2010).  The RO declined to reopen the Veteran's claims for service connection for right and left lower extremity axonal type motor polyneuropathy; thus, as the Board herein reopened the claims, the issues must be remanded for the RO to contemplate the claims on the merits. 

In addition, the Board observes that at his December 2012 hearing, the Veteran testified to having received recent treatment at the Bay Pines VA Medical Center (VAMC) and the hearing transcript indicates that he was submitting the records.  However, these treatment records are not associated with the claims file as it has been provided to the Board.  Rather, the most recent VA treatment record is dated in September 2010.  Thus, all VA treatment records from the Bay Pines VAMC dated from September 2010 onward must be added to the claims file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file).

Finally, the Veteran was not afforded a VA examination with respect to these claims.  VA has a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease.  38 C.F.R. § 3.159; See also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Therefore, the appeal must also be remanded so that a VA examination to assess the etiology of the Veteran's peripheral neuropathy of the right and left lower extremities may be scheduled.

Accordingly, the case is REMANDED for the following action:

1. Associate all VA treatment records for the Veteran from within the Bay Pines VAMC dated from September 2010 onward.  All requests and responses, positive and negative, must be documented in the claims file.

2. Schedule the Veteran for the appropriate VA examination to assess the etiology of his right and left lower extremity peripheral neuropathy.  The claims file should be made available for review, and the examination report should reflect that such review occurred.  Upon a review of the record and examination of the Veteran, the examiner should respond to the following: 

Is at least as likely as not (50 percent probability or greater) that the Veteran's right and/or left lower extremity peripheral neuropathy is, at least in part, causally or etiologically related to exposure to herbicides while serving in the Republic of Vietnam or is otherwise a result of his military service? 

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) 

A clear rationale for all opinions and conclusions reached must be provided and a discussion of the facts and medical principles would be helpful to the Board.  

3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report.  See 38 C.F.R. § 3.655 (2012).  A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examination and must reflect that it was sent to his last known address of record.  If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable.

4. After completing the above actions, the AOJ should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs.

5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence and the claims should be readjudicated.  If any benefit sought is not resolved to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 

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

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
L.M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs