Citation Nr: 1801598 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-18 792 ) 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 the previously denied claim of entitlement to service connection for peripheral neuropathy of the right lower extremity. 2. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for peripheral neuropathy of the left lower extremity. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to Agent Orange exposure and as secondary to service-connected diabetes mellitus. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to Agent Orange exposure and as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Jones, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran had active service from March 1966 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Jurisdiction was subsequently transferred to the RO in St. Petersburg, Florida. The Veteran testified before the undersigned at a Board videoconference hearing in November 2017. A transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for peripheral neuropathy of the left and right lower extremities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a June 2008 rating decision, the RO denied service connection for peripheral neuropathy. Although the Veteran was notified of the decision and his appellate rights in a June 2008 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the decision. 2. The evidence received since the final June 2008 rating decision denying service connection for peripheral neuropathy includes medical evidence which relates to an unestablished fact necessary to substantiate the claims and raises a reasonable possibility of substantiating the claims of service connection peripheral neuropathy of the right and left lower extremities. CONCLUSIONS OF LAW 1. The June 2008 rating decision denying the claim of service connection for peripheral neuropathy is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. New and material evidence has been received to warrant reopening of the claims of service connection for peripheral neuropathy of the right and left lower extremities. 38 U.S.C. §§ 5107, 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Applicable Legal Criteria In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1100, 20.1103 (2017). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. 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 (2017). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. Factual Background The Veteran's claim of service connection for peripheral neuropathy was initially denied in a June 2008 rating decision because, although the Veteran's military personnel records confirmed service in the Republic of Vietnam, applicable regulations did not provide for findings of later appearing chronic or transient peripheral neuropathy as being related to prior herbicide exposure. Further, the evidence of record did not establish a chronic peripheral neuropathy condition which began in service or of a chronic peripheral neuropathy condition initially manifesting itself to a compensable degree within one year of separation from active service to warrant presumptive service connection. The Veteran was notified of the decision and his appellate rights in a June 2008 letter. He did not appeal the RO's determination and no new and material evidence was received within a year of the issuance of the rating decision. Thus, the RO's June 2008 rating decision is final and not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.1103 (2017). The Veteran now seeks to reopen the previously denied claim of service connection for peripheral neuropathy. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). The evidence of record at the time of the June 2008 rating decision included service treatment records and private treatment records noting a diagnosis of peripheral neuropathy of the bilateral lower extremities. The additional evidence received since the final June 2008 rating decision includes lay statements regarding the onset of neuropathy pain and a transcript of the Board videoconference hearing. Also of record are post-service medical records noting continued treatment for peripheral neuropathy of the bilateral lower extremites. Such records include a June 2012 private medical opinion in which the physician indicated that the Veteran's diabetes mellitus went undiagnosed. He then developed symptoms of peripheral neuropathy and was then diagnosed with diabetes mellius. The physican opined that the diabetes mellitus caused the diabetic peripheral neuropathy. He stated that the Veteran had not been diagnosed with diabetes mellitus first because he did not seek medical treatment. Also of record is the report of an April 2011 VA examination indicating that the Veteran's peripheral neuropathy is not secondary to his service-connected diabetes mellitus and the report a June 2017 VA examination for diabetes mellitus indicating that diabetic peripheral neuropathy is a complication of diabetes mellitus.. The Board has carefully considered the record, with particular attention to the additional evidence received since the final June 2008 rating decision. After considering this additional evidence, the Board concludes that it is new and material warranting reopening of the claims of service connection for peripheral neuropathy of the right and left lower extremities. In this regard, the previous claim was denied because there was no evidence showing that the condition is related to Agent Orange exposure. As detailed herein, the evidence subsequent to the June 2008 rating decision, when presumed credible, suggests that the Veteran has peripheral neuropathy that may be secondary to his service-connected diabetes mellitus. The Board finds that this evidence, when presumed credible, relates to an unestablished fact necessary to substantiate the claim and would trigger VA's duty to provide a medical examination to determine if the Veteran's peripheral neuropathy of the bilateral lower extremities is causally related to active service or secondary to a service-connected disability. 38 C.F.R. § 3.159(c)(4) (2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under these circumstances, the Board finds that new and material evidence has been presented. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Accordingly, the Board finds that the Veteran's previously denied claims of service connection for peripheral neuropathy of the left and right lower extremities are reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). Although the record is sufficient to warrant reopening of the claims, it is not sufficient to allow the grant of the benefits sought. For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits. ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. REMAND The Veteran asserts that service connection is warranted for peripheral neuropathy of the bilateral lower extremities. Initially, he asserted that the condition is due to Agent Orange exposure. In a statement received in December 2010, the Veteran indicated that "his feet had been hurting since returning from Vietnam." Subsequently, he has contended that his peripheral neuropathy is secondary to his service-connected diabetes mellitus. At the outset, the Veteran's military personnel records confirm that he had service in the Republic of Vietnam, thus, herbicide agent exposure is legally presumed. The medical evidence available to the Board demonstrates that the Veteran was diagnosed as having peripheral neuropathy of the bilateral lower extremities in 2007, prior to his diagnosis of diabetes mellitus. At his November 2017 Board hearing, however, the Veteran testified that at the time he was diagnosed as having peripheral neuropathy, he was also found to have elevated blood sugar. The Board observes that there are conflicting medical opinions regarding the etiology of the Veteran's peripheral neuropathy of the bilateral lower extremities. In the report of an April 2011 VA examination for the Veteran's diabetes mellitus, the examiner opined that it is not likely that the Veteran's peripheral neuropathy is due to or aggravated by the Veteran's diabetes mellitus. In so finding, he noted that the medical data shows a long history of peripheral neuropathy predating the diagnosis of diabetes mellitus. In a June 2012 private medical opinion, the physician indicated that the Veteran's diabetes mellitus was present at the time of the peripheral neuropathy diagnosis, but went undiagnosed. The physician opined that the diabetes mellitus caused the diabetic peripheral neuropathy. He stated that the Veteran had not been diagnosed with diabetes mellitus first because he did not seek medical treatment. In the report of a June 2017 VA examination for diabetes mellitus, the examiner indicated that diabetic peripheral neuropathy was a complication of diabetes mellitus. In a report of a June 2017 VA diabetic sensory-motor peripheral neuropathy examination, the examiner indicated that diabetes mellitus is a known cause of peripheral neuropathy and early neuronopathy can develop before the onset of diabetes mellitus in some patients. In light of the forgoing, the Board finds that an addendum medical opinion must be obtained on remand to determine if the Veteran's peripheral neuropathy is due to Agent Orange exposure during active service or is secondary to his service-connected diabetes mellitus. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain an addendum opinion from a suitably qualified clinician regarding the nature and etiology of the Veteran's peripheral neuropathy of the bilateral lower extremities. Access to records in the Veteran's electronic claims file should be made available to the clinician for review in connection with his or her opinion. An additional VA examination may be provided if deemed necessary. The clinician should determine if the Veteran's peripheral neuropathy is acute, subacute, or early-onset. Thereafter, he or she is to provide opinions to the following: (a) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's peripheral neuropathy of the right and left lower extremities was incurred in service or is otherwise causally related to his active service or any incident therein, to include legally presumed exposure to an herbicide agent?? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's peripheral neuropathy of the right and left lower extremities was caused by his service-connected diabetes mellitus? (c) Is it at least as likely as (i.e., a 50 percent or greater probability) that the Veteran's peripheral neuropathy of the right and left lower extremities has been aggravated (chronically worsened) by his service-connected diabetes mellitus? If aggravation is found, please identify the baseline level of disability prior to aggravation, to the extent possible, based on the medical evidence and also any lay statements as to the severity of the condition over time. A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the clinician cannot respond without resorting to speculation, it should be explained why a response would be speculative. In rendering the requested opinions, the examiner must discuss the Veteran's reports regarding the onset of his neuropathy symptoms. The examiner must also discuss the other medical opinions of record regarding the etiology of the appellant's peripheral neuropathy of the bilateral lower extremities, to include laboratory findings showing elevated blood sugar in February and March 2007. 2. After undertaking any development deemed necessary, readjudicate the issues on appeal, considering all the evidence of record. If the benefits sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case and the opportunity to respond. The case should then be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs