Citation Nr: 1804707 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-36 137A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for hypertension, to include as secondary to the service-connected diabetes mellitus disability, and if so, whether service connection is warranted. 2. Entitlement to a rating in excess of 10 percent for right upper extremity peripheral neuropathy. 3. Entitlement to a rating in excess of 10 percent for left upper extremity peripheral neuropathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to May 1967. The issues of (1) service connection for hypertension, to include as secondary to the service-connected diabetes mellitus disability (reopened); (2) an increased rating in excess of 10 percent for right upper extremity peripheral neuropathy; and (3) an increased rating in excess of 10 percent for left upper extremity 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. An unappealed January 2003 rating decision denied service connection for hypertension, to include as secondary to the service-connected diabetes disability; the Veteran did not submit a timely notice of disagreement to the rating decision and additional relevant evidence was not received within one year of the rating decision notice. 2. The evidence received since the January 2003 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for hypertension. CONCLUSIONS OF LAW 1. The January 2003 rating decision denying service connection for hypertension is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The evidence received subsequent to the January 2003 rating decision is new and material; the claim for service connection for hypertension is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C.A § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011) (remanding for the Board to consider the application of 38 C.F.R. § 3.156(b) and whether the regional office correctly viewed the statements in question "as new claims"). That is, when statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156(b). The Veteran was initially denied service connection for hypertension in a January 2003 rating decision because there was no indication that his hypertension was related to service or to his service-connected diabetes disability. He was notified of the rating decision but did not appeal the decision. As such, the January 2003 rating decision became final. The evidence of record at the time of the January 2003 rating decision consisted of the service treatment records, and private treatment records. The evidence received subsequent to the January 2003 rating decision includes, in pertinent part, a May 2008 statement from the Veteran's treating physician, Dr. S.C., which indicated that the Veteran had been diagnosed with diabetes in 1998 and was diagnosed with hypertension in 2002. According to Dr. S.C., patients with diabetes were at a higher risk of developing hypertension that those without diabetes. This evidence is new and material within the meaning of applicable law and regulations because it is probative of the issue on appeal. The May 2008 statement from Dr. S.C. provides some evidence at could be found to weigh in favor of the Veteran's claim of secondary service connection. Moreover, the Veteran is presumed to have been exposed to herbicides in service as his service personnel records reflect that he served in the Republic of Vietnam during the Vietnam War Era. Although current VA regulations do not provide hypertension as a presumptive disability associated with herbicide exposure, the National Academy of Sciences (NAS), in 2006 and 2008 updates, concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (December 27, 2010). As there is evidence indicating that there may be an association between hypertension and herbicide exposure, the Board finds these NAS updates to be new and material evidence. Accordingly, the newly added evidence relates to an unestablished fact necessary to substantiate the claim of service connection for hypertension. As such, the application is reopened. Finally, the Veteran's previously denied claim for service connection for hypertension is reopened, as explained below, and the reopened claim is being remanded for further development. As such, there is no prejudice to the Veteran and no further discussion of due process is required. ORDER New and material evidence having been received; the claim of service connection for hypertension, to include as secondary to the service-connected diabetes disability is reopened; to this extent only, the appeal is granted. REMAND As noted above, the Veteran is presumed to have been exposed to herbicides in service as his service personnel records reflect that he served in the Republic of Vietnam during the Vietnam War Era. As there is evidence indicating that there may be an association between hypertension and herbicide exposure, a VA opinion must be obtained. Moreover, in a September 2008 VA diabetes examination, the examiner indicated that the Veteran's hypertension was not a complication of his diabetes; however, the examiner did not specifically address whether the Veteran's hypertension was due to herbicide exposure or whether it was caused or aggravated by the diabetes disability. For these reasons, a remand is warranted. Regarding the Veteran's claim for higher ratings for his right and left upper extremity peripheral neuropathy disabilities, a new examination is required. Specifically, in an April 2015 VA peripheral neuropathy examination, the examiner indicated that the Veteran reported decreased feeling in his hands and reported that his arms sometimes felt limp causing him to drop objects. Despite these complaints by the Veteran, in addition to numerous VA and private treatment records showing a diagnosis of upper extremity peripheral neuropathy, the April 2015 examiner indicated that the Veteran did not have upper extremity peripheral neuropathy. Given the overwhelming evidence demonstrating a current diagnosis of peripheral neuropathy, the Veteran should be afforded another examination to address the severity of his upper extremity disabilities. Although he submitted a statement from his physician indicating that his symptoms had worsened and were of "moderate nature" there was no physical examination attached to the doctor's statement or any other explanation as to why the disability was characterized as "moderate." As such, a remand is required. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule the Veteran for an examination. After reviewing the claims file, the examiner is asked to: (a) Provide an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension was due to his period of active service, specifically to include his presumed in-service herbicide agent exposure. In providing the above opinion, the examiner should consider the NAS 2006 and 2008 updates which concluded that there was "limited or suggestive evidence of an association" between hypertension and herbicide exposure. See 75 Fed. Reg. 32,540, 32,549 (June 8, 2010); 75 Fed. Reg. 81,332, 81,333 (Dec. 27, 2010). (b) Provide an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that the Veteran's hypertension is caused or aggravated by the service-connected diabetes mellitus. (c) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 3. Schedule an examination to assist in determining the current severity of the service-connected right and left upper extremity peripheral neuropathy. The examiner should review the evidence associated with the record. All indicated tests and studies should be conducted. The examiner should note that VA and private treatment records have confirmed a diagnosis of peripheral neuropathy of the upper extremities. The examiner is asked to specifically assess the current severity of the bilateral upper extremity disability. 4. After all development has been completed, the AOJ should readjudicate the issues. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112 (2012). ______________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs