Citation Nr: 1802836 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 15-35 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for bilateral lower extremity peripheral neuropathy, due to exposure to herbicide agents. 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, due to exposure to herbicide agents. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1966 to June 1969. He was awarded the Combat Action Ribbon and the Purple Heart Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision which reopened and continued denial of service connection for bilateral lower extremity peripheral neuropathy, and an October 2013 rating decision which denied TDIU, by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board notes that the October 2013 rating decision for TDIU never became final, as during the appeal period the Veteran submitted new and material evidence (January 2014 Request for Employment Information). The April 2015 rating decision confirmed and continued the denial of TDIU, however, the claim has remained on appeal since the initial rating decision of October 2013. The Veteran appeared at a videoconference hearing before the undersigned Veterans Law Judge in September 2017. A transcript of that proceeding has been prepared and is associated with the file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017), 38 U.S.C.A. § 7107 (a)(2) (2012). FINDINGS OF FACT 1. A January 2012 rating decision denied service connection for bilateral lower extremities peripheral neuropathy. The Veteran did not appeal the decision and it became final. Evidence received since the January 2012 rating decision is both new and material. 2. The Veteran served in Vietnam and his exposure to herbicide agents is presumed. 3. The Veteran's bilateral lower extremities peripheral neuropathy is related to his exposure to herbicide agents in service. 4. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for bilateral lower extremities peripheral neuropathy may be reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. The criteria for service connection for bilateral lower extremities peripheral neuropathy, due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for a TDIU have been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claim Generally, when there is a final denial of a claim, the claim may not be reopened and reconsidered unless new and material evidence is received. 38 U.S.C. § 5108. "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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The January 2012 rating is the last final rating decision in the matter of the Veteran's entitlement to service connection for peripheral neuropathy. The RO reopened the claim and issued a rating decision in April 2015, confirming and continuing the previous denial. Evidence received since the January 2012 rating decision includes a positive nexus statement from the Veteran's treating neurologist linking the Veteran's peripheral neuropathy symptoms to toxic neuropathy (June 2015), as well as neurology treatment notes from April 2015 noting chronic and continuous symptoms of bilateral lower extremities neuropathy for over 30 years. This evidence was not in the record before, and is new. As it relates to the Veteran's claim for bilateral lower extremities neuropathy due to exposure to herbicide agents, it is material. Further, it is not cumulative or redundant, and it raises a reasonable possibility of substantiating the claim. Therefore, the Board finds the additional evidence received since January 2012 to be both new and material, and that the claim of service connection for peripheral neuropathy of the lower extremities, due to exposure to herbicide agents, may be reopened. Legal Criteria for Service Connection Service connection may be granted for a disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §3.303(d). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease in service, subsequent manifestations of the same chronic disease, at any later date, however remote, is service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Certain enumerated diseases (including early-onset peripheral neuropathy) may be service connected on a presumptive basis as due to exposure to herbicides in service. Veterans who served in Vietnam during the Vietnam Era are presumed to have been exposed to herbicides in service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). During the course of the claim, there was a change in the law concerning what type of peripheral neuropathy is presumptively service-connected based on in-service Agent Orange exposure. Effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised by replacing the term "acute and subacute" peripheral neuropathy with peripheral neuropathy. VA also removed Note 2 to § 3.309(e), which had required that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Peripheral neuropathy still must become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. 38 C.F.R. § 3.307(a)(6)(ii). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran asserts that his peripheral neuropathy of the bilateral lower extremities is due to Agent Orange exposure during military service. As an initial matter, the Board notes that the Veteran has been diagnosed with peripheral neuropathy of the bilateral lower extremities. Accordingly, the first element for establishing service connection has been met. Turning to the second element for service connection, the Board initially notes that the Veteran is a combat Veteran of the Vietnam War. As such, his exposure to herbicide agents is conceded. Although his service treatment records (STRs) do not contain any mention of neurological problems, to include of the lower extremities, and his medical history at separation is silent for neurological complaints, the Veteran has consistently maintained that he started feeling numbness and tingling in both of his feet soon after returning from Vietnam. He has stated that he sought medical attention "in 1975 and thereafter on numerous occasions. Tests were run - unable to identify what caused nerve damage," (December 2009 Consent to Release Information). The Veteran was diagnosed with early peripheral neuropathy in February 2006. In an April 2015 Neurology Outpatient Note, the treating physician noted the Veteran's symptoms began over 30 years prior, "shortly after upon his return from service (possibly secondary to Agent Orange exposure)." In a June 2015 Physician's Questionnaire, the supervising neurologist opined that the Veteran's symptoms "have been present upon his return from Vietnam and stable since. Such a time course would be consistent with a toxic neuropathy." In August 2015, the Veteran was afforded a VA peripheral nerves examination. The examiner reported that the Veteran had a history of exposure to Agent Orange during the Vietnam War and that the Veteran "began having tingling involving the toes around 1969, while in active service. States [he] was evaluated in service but no diagnosis was reached. Per the Veteran, the symptoms have gradually progressed over time." The examiner diagnosed the Veteran with peripheral neuropathy, sensory, mild-moderate. The examiner noted that the Veteran's bilateral sciatic nerves, bilateral external popliteal (common peroneal) nerves, bilateral musculocutaneous (superficial peroneal) nerves, bilateral anterior tibial (deep peroneal) nerves, bilateral internal popliteal (tibial) nerves, bilateral posterior tibial nerves, bilateral internal saphenous nerves, bilateral external cutaneous nerves of the thighs, and bilateral ilio-inguinal nerves all exhibited incomplete paralysis. In addition, EMG testing done in February 2014 produced abnormal results for the Veteran's bilateral lower extremities described as "electrodiagnostic evidence of sensory axonal, motor demyelinating neuropathy in lower extremities." The examiner concluded that the Veteran's peripheral neuropathy is not likely to be related to the military service as his formal diagnosis was not made until 2006 and "no objective evidence of these symptoms predating 2006 has been presented." The Board finds that the August 2015 VA examiner's opinion lacks significant probative value. The examiner failed to address the Veteran's statements that he has had symptoms that have become progressively worse since his time in the service. Moreover, the examiner did not address the presumption of herbicide agent (Agent Orange) exposure and the Veteran's diagnosed peripheral nerve disability, although peripheral neuropathy is one of the listed disabilities linked to herbicide agent exposure. Consequently, the VA examiner's opinion is not supported by an adequate rationale. The Veteran's competent and credible statements that he has experienced numbness and tingling in both his feet, and now in both of his legs, since service are sufficient to establish the continuity of symptomatology of his current bilateral lower extremities peripheral neuropathy. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77(Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470-71 (1994). In summary, the Veteran's statements, along with the medical evidence provided by the VA neurology clinic and supervising neurologist, which provided the nexus between the Veteran's current diagnosis of peripheral neuropathy and his exposure to herbicide agents, satisfy the required elements for service connection. Accordingly, service connection for bilateral lower extremities peripheral neuropathy is warranted. Entitlement to TDIU A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master degree in education and his part-time work as a tutor). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. As an initial matter, the Board observes that the Veteran meets the schedular criteria for TDIU. Since September 2011, he has had a combined rating of 90 percent, with service connection for anxiety disorder rated at 70 percent disabling, bilateral hearing loss rated as 40 percent disabling, tension headaches, secondary to a shell fragment wound, rated as 30 percent disabling, and tinnitus rated as 10 percent disabling. The Veteran asserts that he cannot work due to his anxiety, his hearing problems, headaches, and his leg problems (peripheral neuropathy in both legs, now service-connected). He stated he can work at most three hours a day, but is not sure how long he can continue to do so. (Substantive Appeal, September 2015). The Veteran applied for TDIU in January 2013. On his application he noted his recent employment history: 20 hours a week at Walmart from 2007 to 2011 and currently 15 hours a week (3 hours a day) at Fabric Depot from 2001. He last worked full-time in August 2007. He has stated that he left the position at Walmart because of the nerve damage in his legs and that he could not continue to stand for eight hour shifts. In October 2013 the RO issued a rating decision denying TDIU. The rationale provided stated that as the Veteran was currently working and the Request for Employment Information had not been received, "the evidence of record does not show that you are incapable of employment." In January 2014, the RO received the Request for Employment Information from Fabric Depot, the Veteran's employer. Under "Concessions Made to Employee," the supervisor wrote that the Veteran worked three hours a day and was unable to stand long hours on his feet. The RO did not issue an additional rating decision. In February 2016, the Veteran's doctor wrote a letter addressing the Veteran's employability. In it, he wrote that the Veteran "has tried to work in a few jobs where the work was modified to allow him only 3 hours and no heavy lifting and such. This was still not possible because of his severe anxiety..." The Board notes that the Veteran's service-connected disabilities include a significant mental health disability, as well as several physical disabilities. As noted above, the Veteran's service-connected disabilities, apart from the current award of service connection for bilateral lower extremities peripheral neuropathy, meet the schedular requirement for TDIU. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities have prevented him from obtaining and maintaining substantial employment, and, therefore, a TDIU is warranted. ORDER As new and material evidence has been received, reopening of the claim for service connection for bilateral lower extremity peripheral neuropathy is granted. Service connection for bilateral lower extremity peripheral neuropathy, due to exposure to herbicide agents, is granted. Total disability based on individual unemployability is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs