Citation Nr: 1805247 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-16 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected diabetes mellitus type II and/or Agent Orange exposure. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for peripheral neuropathy of the right lower extremity, to include as secondary to service-connected diabetes mellitus type II and/or Agent Orange exposure. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran had active service from February 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was originally scheduled for a hearing before a Veterans Law Judge in June 2017. The Veteran submitted a signed statement date in May 2017 indicating that he would be unable to appear before the Board due to a blood clot condition. However, the Veteran indicated that he desired that the adjudication of his claims proceed without the hearing. As such, the Board finds that the Veteran has knowingly waived his right to a Board hearing. Adjudication of the Veteran's claims shall proceed accordingly. The issue of entitlement to service connection for alcohol abuse has been raised by the record in a May 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran filed a claim for service connection for peripheral neuropathy in September 2005. In a June 2006 rating decision, the RO denied service connection. The Veteran did not submit any additional evidence or an intention to appeal this decision and it was finalized one year later in June 2007. The Veteran then filed the current claim to reopen in September 2009. 2. The evidence added to the record since the final June 2006 rating decision is not cumulative or redundant of the evidence of record on file at the time and raises a reasonable possibility of substantiating the claim of entitlement to service connection for peripheral neuropathy. 3. The probative medical evidence of record does not show that the Veteran's peripheral neuropathy of the bilateral lower extremities is the result of military service, to include presumed Agent Orange exposure or service-connected diabetes mellitus type II, but rather is due to non service-connected alcohol abuse. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral peripheral neuropathy of the lower extremities. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). 2. The criteria for establishing service connection for peripheral neuropathy of the bilateral lower extremities is the result of military service, to include presumed Agent Orange exposure or service-connected diabetes mellitus type II, are not met. 38 U.S.C. §§ 1110, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria New and Material Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303 (d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Service connection may be granted for chronic disabilities, such as organic diseases of the nervous system, if such are shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a condition noted in service is not shown to be chronic, then a showing of continuity of symptomatology after service will be required to establish service connection. 38 C.F.R. § 3.303 (b). The option of establishing service connection through a demonstration of continuity of symptomatology is specifically limited to the chronic conditions listed in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity to symptomatology can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309 (a) ). The Veteran's claimed diagnosis of peripheral neuropathy would be considered a chronic condition under the statute. 38 U.S.C. §§ 1112, 1113, 1137 (2012). Therefore, presumptive service connection, and service connection based on continuity of symptomatology, would be applicable. Additionally, the law provides that, if a Veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) 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: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309 (e) (2017). For the purposes of § 3.307, the term herbicide agent means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307 (a)(6)(i). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307 (a)(6)(ii). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis New and Material The Veteran filed a claim for service connection for peripheral neuropathy in September 2005. In a June 2006 rating decision, the RO denied service connection. The Veteran did not submit any additional evidence or an intention to appeal this decision and it was finalized one year later in June 2007. The Veteran then filed a claim to reopen service connection for peripheral neuropathy in September 2009. In a June 2011 rating decision, the RO reopened the Veteran's claim and denied it on the merits. Despite the fact that the RO reopened the Veteran's claim, the Board has a legal duty to consider the new and material evidence issue regardless of the RO's actions. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 Fed. 3d. 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Thus, the Board must first review whether new and material evidence has been submitted to reopen the previously denied claim. The June 2006 rating decision denied the claim on the basis that there was no showing of any current disability. The Veteran was notified of the decision on June 10, 2006. He had until June 10, 2007, to submit additional evidence or an intention to appeal. The Veteran did not submit any new evidence or claim until September 2009, over 2 years after the deadline. Therefore, the June 2006 rating decision became final. Since the June 2006 rating decision was finalized, the Veteran submitted additional evidence, to include records showing treatment and a diagnosis of peripheral neuropathy back in 2009. Additionally, the Veteran presented argument that his condition should also be considered secondary to his service-connected diabetes mellitus type II, which was not service-connected back in 2006 at the time of the original claim, and he now had conceded Agent Orange exposure, which also had not been provided back in 2006 at the time of the original claim. These statements and treatment records are new because they had not been previously considered. They are also material because they address the issue of the existence of a current disability with an in-service injury and the potential for a nexus. This at the very least meets the minimum threshold requirements under Shade, 24 Vet. App. at 110 for a finding of new and material evidence. As new and material evidence has been received, the claim of entitlement to service connection for peripheral neuropathy is reopened. Merits The Veteran contends that he currently has peripheral neuropathy that is related to military service. In particular, the Veteran has both claimed that this condition is the result of his diabetes mellitus type II and/or Agent Orange exposure while service in Vietnam. The Veteran's service personnel records reflect that he had the requisite Vietnam service during the applicable time period, therefore, Agent Orange exposure is presumed. A review of the Veteran's service treatment records was absent for any discussion of complaints or diagnosis of any peripheral neuropathy or neurological symptoms of the lower extremities. A review of the Veteran's post-service outpatient treatment records show that the Veteran has been treated for peripheral neuropathy of the lower extremities since 1999. Records in February 1999 show that the Veteran indicated left foot numbness for the past 2-3 years. Electromyography (EMG) and nerve conduction studies were performed on June 1999. Results showed moderate sensory and motor peripheral neuropathy, consistent with alcohol-induced peripheral neuropathy. It is noted that there was a history of chronic alcohol use shown. In October 2006, the Veteran indicated bilateral lower extremity numbness from the knees down to the feet. A diagnosis of diabetes mellitus was not shown until November 2009. The Veteran was provided with a VA examination in March 2011. At the VA examination, the Veteran reported onset in 2000 that has migrated up to the knees. The examiner noted reduced sensory and reflexes of the lower extremities and diagnosed peripheral neuropathy, secondary to diabetes, and provided an opinion it is at least as likely as not due to diabetes because there is no other apparent cause. A clarification was requested based on other apparent causes in the record, as well as evidence of peripheral neuropathy existing well before the onset of diabetes mellitus. In June 2011, the examiner reviewed the medical evidence of record, noting that hemoglobin values from 2005 to 2011 were all normal, and glucose testing for the same time showed only one elevated value, not valid for diagnostic purposes to identify diabetes mellitus. The examiner also noted that the Veteran was not on medication for diabetes control. The examiner noted that there was a complaint for numbness of the feet as early as 1999, with the report that the condition had existed for 2-3 years, and EMG results confirming peripheral neuropathy are shown well in advance of the reported onset of diabetes. The examiner stated that the current peripheral neuropathy or peripheral nerve disease is not secondary to diabetes mellitus, and is not shown to be aggravated in any way by diabetes. Rather, the examiner found that the findings were consistent with alcohol-induced peripheral neuropathy. Having reviewed the complete record, the Board finds that service connection for a peripheral neuropathy is not warranted. It is noted that the Veteran does have a current disability, as he was first diagnosed with peripheral neuropathy of the bilateral lower extremities in 1999 and continues to be so to present. Additionally, it is noted that the Veteran does have conceded in-service Agent Orange exposure upon which to base service-connection as well as service-connected diabetes mellitus type II for the purposes of secondary service connection. In regard to the Agent Orange presumption, the Board notes that the Veteran's peripheral neuropathy has never been designated as "early-onset" as contemplated by 38 C.F.R. § 3.309. Rather, the Veteran did not develop peripheral neuropathy until many decades later in 1999 after leaving military service. Clearly, the Veteran's over 30 year delayed onset would not be considered early onset. As such, although presumptive service connection is warranted for peripheral neuropathy in the limited context of early onset, such presumption is not warranted by the particular facts of the Veteran's case. Accordingly, service connection on the basis of Agent Orange presumption is not warranted. However, The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran who does not meet the requirements of 38 C.F.R. § 3.309 does not preclude him from establishing service connection by way of proof of actual direct causation. Combee v. Brown, 34 F.2d 1039, 1041-42 (Fed. Cir. 1994). As such, even though the Veteran does not meet the enumerated criteria for consideration of presumptive service connection for Agent Orange exposure, it does not absolve VA of the responsibility of inquiring whether such condition was directly related to the Veteran's military service, to include exposure to Agent Orange, particularly in light of his conceded exposure. Here, the medical evidence of record has not shown any probative opinions that the Veteran's peripheral neuropathy is the result of Agent Orange exposure. Rather, the probative medical evidence of record, to specifically include the 1999 private treatment findings and 2011 VA examination addendum opinion, found that the Veteran's peripheral neuropathy was the result of his alcohol abuse. The only statements asserting a relationship to Agent Orange are the Veteran's own lay statements. He, as a lay person, is competent to report an observable symptom. See Layno, 6 Vet. App. at 467-69 (1994) (finding that the Veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, in this case, the question of whether the Veteran's peripheral neuropathy is related to his Agent Orange exposure is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). Indeed, appropriate expertise is required to determine whether the Veteran's peripheral neuropathy is the result of Agent Orange exposure. In this case, the record is silent for any evidence to suggest that the Veteran has the appropriate training, experience, or expertise to render such findings. See 38 C.F.R. § 3.159 (a)(1) (2017) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Thus, while the Veteran is competent to report what he experiences, he is not competent to ascertain the etiology of his peripheral neuropathy, as such is not readily subject to lay observation. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno, 6 Vet. App. at 465. Accordingly, in this case, the Board assigns greater weight to the competent medical evidence, specifically the 1999 private findings and 2011 VA examiner finding that the etiology of the peripheral neuropathy was alcohol abuse, than the Veteran's lay statements. No other in-service event, injury, or disease has been shown for a finding of direct service connection. Rather, the Veteran's service treatment records were negative for any showing of peripheral neuropathy, as were any medical documentation of such within one year of leaving military service. As such, service connection on a direct basis is not warranted. In regard to secondary service connection to diabetes mellitus type II, the Board also notes that there have been no probative opinions of record asserting such a relationship. Again, rather, the probative medical evidence of record, to specifically include the 1999 private treatment findings and 2011 VA examination addendum opinion, found that the Veteran's peripheral neuropathy was the result of his alcohol abuse alone. In this regard, not even the Veteran has continued to allege such a relationship, as his May 2017 statement suggests that he actually agrees that his condition is the result of his alcohol abuse and that his alcohol abuse should be service-connected so that he can then service-connect the peripheral neuropathy accordingly. As there is not even any remote suggestion that the Veteran's peripheral neuropathy is related to his service-connected diabetes mellitus type II, as the only positive nexus opinion in this regard was actually amended and changed by the same VA examiner in 2011, the Board finds that service connection on such basis is also not warranted. Last, in regard to continuity of symptoms, the Board finds that the Veteran's claimed peripheral neuropathy is properly afforded such consideration, as organic diseases of the nervous system are one of the enumerated conditions in 38 C.F.R. § 3.309 (a). Walker, 708 F.3d 1331. The Board notes that medical evidence is required to demonstrate a relationship between any present disability and continuity of symptoms, unless such a relationship is one as to which a lay person's observation is competent. However, due to the finding that there was no credible or probative evidence of peripheral neuropathy in service (or within one year after service), any further discussion of continuity of symptoms from such is rendered moot and shall be discussed no further. For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for peripheral neuropathy and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C.A. § 5107 (b) (2017). Thus, the claim must be denied. ORDER New and material evidence having been received, the claim for service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected diabetes mellitus type II and/or Agent Orange exposure, is reopened. New and material evidence having been received, the claim for service connection for peripheral neuropathy of the right lower extremity, to include as secondary to service-connected diabetes mellitus type II and/or Agent Orange exposure, is reopened. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected diabetes mellitus type II and/or Agent Orange exposure, is denied. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as secondary to service-connected diabetes mellitus type II and/or Agent Orange exposure, is denied. ____________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs