Citation Nr: 1438294 Decision Date: 08/27/14 Archive Date: 09/03/14 DOCKET NO. 08-19 893A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for neuropathy of the left leg and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell INTRODUCTION The Veteran served on active duty from August 1968 to June 1970 and from July 1970 to July 1971. This appeal to the Board of Veterans' Appeals (Board) is from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2012 the Board remanded this case for further development. At that time the issues certified for appellate review included service connection for motor neuropathy of the right leg. However, following that Board remand a December 2012 rating decision granted service connection for peripheral neuropathy of the right leg, based on injuries sustained during service. Thus, the claim for service connection for neuropathy of the right leg is no longer before the Board. FINDINGS OF FACT 1. The Veteran served in Vietnam and engaged in combat; and is presumed to have been exposed to herbicides. 2. A November 2005 rating decision denied service connection for peripheral neuropathy of the left leg as not incurred during service and not secondary to service-connected lumbar spine disability; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period 3. Nexus evidence added to the record since the November 2005 rating decision, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for service connection for neuropathy of the left leg and raises a reasonable possibility of substantiating the claim. 4. The Veteran received a blast injury during military service and the medical evidence of record, particularly the November 2012 VA medical opinion, demonstrates that his bilateral neuropathy of both lower extremities is as likely as not a result of his in-service blast injury. CONCLUSIONS OF LAW 1. An unappealed rating decision in November 2005 denied service connection for peripheral neuropathy of the left leg and that decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2013). 2. New and material evidence has been received and the claim of entitlement to service connection for peripheral neuropathy of the left leg is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156(a) (2013). 3. The criteria are met for service connection for neuropathy of the left leg. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for neuropathy of the left leg, and the underlying service connection claim, on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This is so because the Board is taking action favorable to the Veteran by reopening and granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Evidence In November 2005, the RO denied service connection for peripheral neuropathy of the left leg as not incurred during service and not secondary to service-connected lumbar spine disability. Although notified of the denial, the Veteran did not initiate an appeal. Moreover, he did not submit relevant evidence within one year of that denial. Thus, the November 2005 decision is final. See 38 C.F.R. §§ 3.159(b), 20.200 (2013). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase therein "raises a reasonable possibility of substantiating the claim" enables rather than precludes reopening. New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the limited purpose of establishing whether new and material evidence has been submitted, the credibility of new evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The evidence that was of record at the time of the November 2005 rating action included the Veteran's claim and service treatment records, which show no mention of any acute or subacute peripheral neuropathy during his active military service. Also, an October 2002 report shows that nerve conduction studies of selected nerves in both lower extremities yielded findings suggestive of bilateral motor neuropathy affecting mainly the left leg which could be associated with a history of prior trauma. On VA spinal examination in October 2005, however, an examiner opined that the Veteran's lower extremity neuropathy of the left leg, including paresthesias, was less likely than not related to the Veteran's service-connected lumbosacral strain with myositis which was diagnosed during service. This was because the claim file did not contain evidence of any damage to any nerve in the lower extremities and there was no evidence to show any nerve or neurological damage in his lower extremities during service or within a year after service. Evidence added to the record since the November 2005 rating action includes a VA November 2012 examination report relative to the then pending claim for neuropathy of the right leg. The examiner noted that the Veteran brought with him, to the examination, multiple affidavits from service comrades that had served in Vietnam in his unit. They all declared that the Veteran was involved in an explosion in mid-July of 1969 during an artillery fire mission while planting an explosive charge by a wire perimeter. In this event, the Veteran was lifted and thrown by the explosion, resulting in multiple traumas to his body, which indicated that it was a severe blast injury. The examiner concluded that the peripheral nerve damage of the Veteran's bilateral lower extremities, diagnosed by electrodiagnostic studies in 2002, was at least as likely as not related to the explosion, i.e., trauma, incident in mid-July 1969 while on active military service. The Board finds that the findings in the VA examination report are both new and material evidence sufficient to reopen his claim of entitlement to service connection for neuropathy of the left leg. It is new in that it was not previously submitted to VA for consideration. Further, the new evidence is material because it relates to unestablished facts necessary to substantiate the claim, especially when considered contemporaneously to the evidence already of record. Consequently, the Veteran has submitted new and material evidence sufficient to reopen his claim of entitlement to service connection for neuropathy of the left leg. In determining that the evidence submitted since the November 2005 rating decision was both new and material, the Board took cognizance of whether the evidence could, if the claim was reopened, reasonably result in the substantiation of the claim with VA's assistance. 38 C.F.R. § 3.303(b); see Shade, 24 Vet. App. at 117. Service Connection Service connection is warranted for disability incurred or aggravated during active service or by application of certain rebuttable presumptions. 38 U.S.C.A. § 1101, 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A rebuttable presumption of service connection exists for chronic diseases, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are "medically chronic"), including organic diseases of the nervous system, if the chronicity is shown as such in service or manifests to 10 percent or more within one year of service discharge (under § 3.307), or, if there is continuity of symptomatology after service. The use of continuity of symptoms to establish service connection is limited to only those diseases listed at 38 C.F.R. § 3.309(a), which includes arthritis and other organic diseases of the nervous system, and does not apply to other disabilities which might be considered chronic from a medical standpoint. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed.Cir. 2013). In the cases of veterans who served in Vietnam, as in this case, exposure to herbicides is presumed. For veterans exposed to an herbicide agent (to include Agent Orange) during active service, acute and subacute peripheral neuropathy shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(ii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.307(a)(6)(ii) provides that acute and subacute peripheral neuropathy must have manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide during service. Also, note 2 to 38 C.F.R. § 3.309(e) provides that for the purpose of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. VA has not found a positive association between exposure to herbicides and any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See 72 Fed.Reg. 32,395 (Jun. 12, 2007). Nevertheless, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039(Fed. Cir. 1994). See, too, McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which instead concerned exposure to radiation, are equally applicable in cases involving exposure to Agent Orange). Initially, the Board notes that the Veteran reported having been treated beginning in 1973, about two years after discharge from his 1971 period of military service. A search for such records was unsuccessful and the RO set forth in a formal finding that such records were unavailable and could not be located. The Veteran's service representative contends that the same principles relating to missing or incomplete STRs should govern here, i.e., imposing a heightened burden to explain findings and conclusions and to consider the benefit of the doubt. However, the Board need not address this argument. This is because the evidence upon which service connection was granted for right leg peripheral neuropathy by the December 2012 rating decision is the very same evidence which is equally applicable to the claim for service connection for peripheral neuropathy of the left leg. It would be incongruous to conclude that the very same evidence upon which service connection was granted for neuropathy of the right leg was insufficient to both reopen and allow the claim for service connection for neuropathy of the left leg. Stated in other terms, the evidence which was the basis for granting service connection for neuropathy of the right leg, with the favorable resolution of doubt in favor of the Veteran as required by 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, compels the Board to conclude that such evidence is both sufficient to reopen the claim for service connection for neuropathy of the left leg and to grant such claim. Accordingly, service connection for neuropathy of the left leg is warranted. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for neuropathy of the left leg is reopened. Service connection for neuropathy of the left leg is granted. ____________________________________________ A. ADAMSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs