Citation Nr: 1803776	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  13-26 717	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Whether new and material evidence was submitted to reopen claims of service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to service-connected diabetes mellitus, type 2.

2.  Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to service-connected diabetes mellitus, type 2.

3.  Entitlement to service connection for peripheral neuropathy of the right upper extremity, to include as secondary to service-connected diabetes mellitus, type 2.

4.  Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected diabetes mellitus, type 2.

5.  Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to service-connected diabetes mellitus, type 2.

6.  Entitlement to service connection for a gastrointestinal disability, claimed as gastritis, to include as secondary to service-connected diabetes mellitus, type 2.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Connally, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, had service from August 1969 to
August 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  The December 2010 rating decision denied reopening service connection for a gastrointestinal disability.  The June 2017 rating decision and July 2017 notification letter denied reopening service connection for peripheral neuropathy.

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether the agency of original jurisdiction (AOJ) has already addressed the question.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995).

In July 2017, the Veteran testified at a Board hearing before the undersigned
Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file.

The Board previously considered the appeal for service connection for a gastrointestinal disability in October 2017, and remanded the issue for additional development in order to request a VA examination opinion.  After the development was completed, the case returned to the Board for further appellate review.

The Veteran recently perfected an appeal regarding the issues of reopening entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as secondary to service-connected diabetes mellitus, type 2.  This claim was certified to the Board in November 2017.  Accordingly, the Board will assume jurisdiction over these issues.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).

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 issue of entitlement to service connection for a gastrointestinal disability and claims for peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A November 2006 rating decision denied a claim to reopen service connection for peripheral neuropathy of the bilateral upper and lower extremities, the Veteran timely appealed the decision, but later withdrew the claim, and a May 2016 Board decision that dismissed the appeal as withdrawn became final.

2.  New and material evidence has been received since the November 2006 rating decision and May 2016 Board decision to substantiate the claims of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities.  The newly received evidence is neither cumulative nor redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claims.


CONCLUSIONS OF LAW

1.  The May 2016 Board decision that dismissed entitlement to service connection for peripheral neuropathy is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017).

2.  The criteria to reopen the service connection claims for peripheral neuropathy of the bilateral upper and lower extremities have been met.  38 U.S.C. §§ 5103, 5103A, 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive.  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).  The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  See Gilbert, 1 Vet. App. at 53.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Claims to Reopen Service Connection

The Veteran originally filed a claim for entitlement to service connection for peripheral neuropathy in May 1998.  The RO initially considered and denied the claim in a June 1998 rating decision.  The Veteran did not submit a timely appeal.  Over the years, the Veteran sought to reopen the claim on several occasions with the RO again denying the claim to reopen in November 2006.  The Veteran appealed this decision and the Board subsequently remanded the claim in March 2010.  The Board reopened the claim and then remanded the issue for additional development, which was ultimately dismissed by the Board in May 2016 because the Veteran withdrew the claim via March 2016 correspondence.  Generally, a claim that has been denied may not thereafter be reopened and allowed based on the same record.  38 U.S.C. § 7105.  However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 decision makers.  Material evidence is defined as 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) (2017).  In determining whether evidence is "new and material," the credibility of the new evidence must be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

Regardless of the RO's determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened.  See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)).  Accordingly, the Board must initially determine whether there is new and material evidence to reopen a claim of service connection for peripheral neuropathy.

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, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement.  Id. at 118.  

The RO last denied the claim in a November 2006 rating decision on the grounds that there was no evidence that the Veteran had current diagnoses for these disabilities or that they were related to service.  The Board then dismissed the claim due to the Veteran's withdrawal in May 2016.  The Veteran did not appeal this decision and it became final as to the evidence then of record, and is not subject to revision on the same bases.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103.  

Since the last final denial, documents have been associated with the claims file that discusses the possibility of a nexus for these disabilities.  This evidence includes a new theory of entitlement, VA treatment records, and a VA examination from October 2015that had not previously been associated with the file.  

The assertion of a new theory of entitlement to service connection for the same disease or injury that was previously the subject of a final decision does not constitute a new distinct claim for benefits.  Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir 2008).  However, evidence offered in support of that theory of entitlement can be sufficient to warrant reopening of the claim if it meets the definitions of new and material.  Id.

The Veteran asserts that his peripheral neuropathy disabilities are secondary to his service-connected diabetes mellitus, type 2.  At the time of the November 2006 rating decision, the Veteran was not service-connected for diabetes mellitus, type 2.  Since that time, he has been service-connected for diabetes mellitus, type 2.  The record also includes VA treatment records that reference neuropathy.

As these documents represent evidence not previously submitted to agency decision makers and relates to an unestablished fact necessary to substantiate the claim, the Board finds that the additional evidence is new and material to reopen the claim of service connection for peripheral neuropathy.  Therefore, the claims will be reopened.

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence.  38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).

The Board notes that the claim to reopen entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities was filed pursuant to the Fully Developed Claim (FDC) program.  Under this program, the Veteran certified via VA Form 21-526EZ that he received "Notice to Veteran/Service Member of Evidence Necessary to Substantiate a Claim for Veterans Disability Compensation and Related Compensation Benefits."  Thus, VA's duty to notify has been met.

Next, VA has a duty to assist a veteran in the development of the claim.  To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim").  Here, service records have been obtained as have records of SSA, VA and private treatment.  Based on the foregoing, the Board finds that VA has met its duty to assist with regard to records development.

The Veteran was afforded a VA examination with respect to his claim.  During the examination, the VA examiner conducted a physical examination of the Veteran with diagnostic testing, was provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion).

All necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record.  The Board has carefully considered such statements, and concludes that no available outstanding evidence has been identified.  Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).


ORDER

New and material evidence has been received to reopen the claim for entitlement to service connection for a peripheral neuropathy of the bilateral upper and lower extremities.


REMAND

Although the Board regrets the additional delay, a remand is required in this case.

The Veteran underwent an examination in October 2015 and November 2017; however, medical clarification is needed regarding whether there is a causal relationship between in-service treatment for a gastrointestinal disability and current diagnoses related to the Veteran's gastrointestinal system.  None of the aforementioned VA examinations adequately discussed the Veteran's current diagnoses for gastrointestinal symptoms.  The October 2015 VA examiner noted a diagnosis of gastritis from December 2013 due to positive results for helicobacter pylori (H. Pylori).  He also noted that the VA treatment records listed this condition as "Helicobacter-associated gastritis."  The examiner noted that the Veteran was then treated with H. Pylori eradication therapy.  He pointed out that March 2014 VA treatment records show the Veteran had a small bowel capsule endoscopy, which revealed unremarkable gastric images.  The examiner opined that the Veteran does not have a current diagnosis for diabetic gastritis, but did not discuss whether the prior diagnosis that was made during the appeal period was related to service.

On VA examination in November 2017, the examiner noted a current diagnosis of duodenal ulcers.  In a December 2017 addendum VA examination opinion, a second VA examiner noted the Veteran's prior history of treatment for gastrointestinal symptoms, including his most recent VA treatment records from July 2017.  The second VA examiner noted that the Veteran received an endoscopy in February 2017, which showed "upper abdominal pain, chronic enigmatic mild anemia, and clinical 'gastropathy' with gastric biopsies normal, duodenal biopsies with very mild duodenitis/villitis change."  The examiner also remarked that the Veteran's last gastrointestinal treatment from July 2017 noted only mild reflux symptoms.  The examiner did not provide an opinion as to whether the mild reflux symptoms were related to service or a service-connected disability.  The December 2017 VA examiner's addendum opinion for secondary service connection is also inadequate because it only discussed the Veteran's duodenal ulcer condition with residual mild duodenitis.

Once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The VA examination medical opinions pointed out that the Veteran has had various gastrointestinal disability diagnoses since March 2010 (this is the date of claim based on referral from a March 2010 Board decision), but lacks any discussion as to whether these prior diagnoses are related to service.  Without further clarification, the Board is without medical expertise to determine the nature and etiology of the claimed disability.  Colvin v. Derwinski, 1 Vet. App. 171 (1991).  In light of the above, the Board finds that a new VA examination opinion must be obtained.

Concerning the neuropathy, although the June 2017 VA examiner concluded there was no current diagnosis; recent VA treatment records suggest the Veteran has a diagnosis of diabetic foot neuropathy.  Specifically, a June 2017 VA treatment record noted complaints of numbness and tingling, objective findings of decreased sensation, foot examination reflected abnormal thickened toenails and decreased sensation to the feet and included a diagnosis of "chronic pain syndrome: pain 2/2 cervical spine arthritis and diabetic foot neuropathy."  Given the discrepancy in the findings within the same month, the Board finds another examination is warranted.  

Accordingly, the issues are 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 VA examination to determine the nature and etiology of any current gastrointestinal disability diagnosed since March 2010.  The entire claims file should be reviewed by the examiner.  The examiner is asked to consider the Veteran's lay statements to the effect that he was treated for a gastrointestinal disability in service and had continuous gastrointestinal symptoms since then.  Additionally, the examiner should closely review the Veteran's VA and private treatment records when considering the development of the current gastrointestinal disability over time. 

After reviewing the record, the examiner should perform all of the following: 

a)  Identify all gastrointestinal disabilities diagnosed since March 2010 and explain whether any of these diagnosed conditions are related and/or represent a progression of any prior gastrointestinal symptoms.  The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim . . . even though the disability resolves prior to the Secretary's adjudication of the claim."  See McClain v. Nicholson, 21 Vet. App. 319 (2007).

c)  For each gastrointestinal disability that has been diagnosed since March 2010, including the reflux noted in 2017 and the gastritis diagnosed in 2015 offer medical opinions and provide a complete rationale for all conclusions reached as to the following:

i)  Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's gastrointestinal disability (as documented in VA and private treatment records since March 2010) is related to service, including, but not limited to the December 1970 incident found in private treatment records.

ii)  Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's gastrointestinal disability (as documented in VA and private treatment records since March 2010) is proximately caused by a service-connected disability, to include medication used to treat the Veteran's service-connected disabilities.  

iii)  Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's gastrointestinal disability (as documented in VA and private treatment records since March 2010) is aggravated (i.e., worsened beyond its natural progression) by a service-connected disability, to include medication used to treat the Veteran's service-connected disabilities.  If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from aggravation.

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of any current neuropathy. The entire claims file should be reviewed by the examiner. 

 a) After reviewing the record, the examiner is asked to opine as to whether it is it at least as likely as not (a 50 percent or better probability) that the Veteran has a current diagnosis of upper or lower extremity neuropathy.

The examiner must comment on the June 2017 VA treatment record noting decreased sensation and suggesting a diagnosis of foot neuropathy.  

b) For any diagnosed neuropathy, the examiner is asked to opine as to whether it is it at least as likely as not (a 50 percent or better probability) that the condition is related to service or his diabetes mellitus, type 2. The examiner should comment on the Veteran's testimony concerning foot pain.

 It is essential that the examiner offer a detailed rationale discussing why and how all conclusions and opinions were reached. This discussion should include reference to specific evidence in the Veteran's claims file, including the medical records and lay assertions.

3.  After completing the above and conducting any additional development deemed necessary, including obtaining any updated treatment records, readjudicate the claim on appeal in light all additional evidence received.  If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 

The Veteran has the right to submit additional evidence and argument on the matter 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 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).



____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs