Citation Nr: 18143147 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 16-19 890 DATE: October 18, 2018 ORDER New and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for bilateral lower extremity peripheral neuropathy. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is granted. FINDINGS OF FACT 1. A December 2005 rating decision denied service connection for bilateral lower extremity peripheral neuropathy. The Veteran was notified of that decision and of his appellate rights. The Veteran filed an untimely notice of disagreement and did not perfect an appeal. Thus, the decision became final. 2. Evidence received since the December 2005 decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for bilateral lower extremity peripheral neuropathy as due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The December 2005 rating decision that denied service connection for bilateral lower extremity peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. 2. New and material evidence has been received since the issuance of the final December 2005 decision and the criteria for reopening the claim for service connection for peripheral neuropathy have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for bilateral lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1963 to May 1967, and from November 1967 to January 1969, including in the Republic of Vietnam. 1. New and material evidence for entitlement to service connection for bilateral lower extremity peripheral neuropathy. The Veteran’s claim for service connection for bilateral lower extremity peripheral neuropathy was originally denied in a December 2005 rating decision based on a finding that there was no evidence that bilateral lower extremity peripheral neuropathy was incurred in service or within one year following separation from service. The Veteran was notified of the decision and of his appellate rights, but he did not submit a timely notice of disagreement and perfect the appeal. There also is no indication that new and material evidence was received within the one year following that decision that was pertinent to the issue. 38 C.F.R. § 3.156(b). Thus, the decision became final. Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is evidence that has not previously been reviewed by VA adjudicators. Material evidence is 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 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). In determining whether evidence is new and material, the credibility of the newly presented evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Board must review all evidence submitted since the last final disallowance of the claim on any basis to determine whether the claim may be reopened. Hickson v. West, 12 Vet. App. 247 (1999). Under the authority granted by the Agent Orange Act of 1991, VA has determined that presumption of service connection based on exposure to herbicide agents used in Vietnam is warranted for conditions for which VA has found a positive association between the condition and such exposure. VA has determined that a positive association exists between exposure to herbicide agents and the subsequent development of early onset peripheral neuropathy. Early onset peripheral neuropathy is required to become manifest to a compensable degree within one year from the last exposure to herbicide agents. The Veteran was previously denied service connection for peripheral neuropathy because it was first diagnosed in June 2003, more than 36 years after his last presumed exposure to herbicide agents. The December 2005 rating decision found that service connection for early onset peripheral neuropathy could not be established on a presumptive basis because the Veteran’s peripheral neuropathy did not first become manifest to a compensable degree within one year of separation from service. That decision further concluded that the Veteran’s medical records showed the neuropathy was caused by nonservice connected lumbar disc disease. However, pertinent evidence received since the December 2005 rating decision includes a November 2013 statement by the Veteran’s neurologist, Dr. Kodsi, that the Veteran’s peripheral neuropathy started in the early 1990s and that the Veteran was exposed to Agent Orange in 1966 or 1967. The doctor opined that there was a high likelihood that herbicide agent exposure played a large role in the development of the Veteran’s peripheral neuropathy. The doctor based that opinion on the determination that extensive evaluation found no other cause. The Board finds this statement to be new and material, and relates to an unestablished fact necessary to substantiate the claim. Therefore, the claim of entitlement to service connection for peripheral neuropathy of both lower extremities is reopened. 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy. The Veteran’s lower extremity peripheral neuropathy is not shown to have manifested until many years following his service in Vietnam and presumed exposure to herbicide agents. Therefore, the claim for service consideration does not fall within the purview of the presumptive provisions of 38 U.S.C. § 1116 because peripheral neuropathy did not manifest within one year following the last presumed exposure during service. However, notwithstanding that the presumption provisions of 38 U.S.C. § 1116 do not apply, a Veteran may still establish service connection for lower extremity peripheral neuropathy on the basis that it is related to the presumed exposure to herbicide agents in service with evidence establishing direct causation. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In a November 2013 statement, a neurologist opined that under the circumstances presented, with all other known causes of peripheral neuropathy were ruled out and the Veteran was known to have been exposed to herbicide agents, it was his belief that there was a high likelihood that herbicide agent exposure played a large role in the development of the Veteran’s peripheral neuropathy. The Board notes that the provider is a neurologist and is found to have specific subject matter expertise. The Board assumes that the provider is familiar with up to date medical literature in the subject matter and notes that the provider expresses familiarity with the factual data in the record. The Board finds that opinion to be competent, and highly probative, evidence regarding the etiology of the Veteran’s lower extremity peripheral neuropathy. In the absence of a medical opinion in the record to the contrary, the Board finds it persuasive. The Board notes that according to a May 1999 private medical record, although an MRI showed significant spinal stenosis and lumbar disc disease, the Veteran’s foot discomfort was not highly suggestive of being due to lumbar disease. All of the requirements for substantiating a claim of service connection are met. There is evidence of a current diagnosis of lower extremity peripheral neuropathy. The Veteran is presumed to have been exposed to herbicide agents in service, and there is competent medical evidence that relates the lower extremity peripheral neuropathy to the exposure to herbicide agents in service. Accordingly, service connection for peripheral neuropathy of both lower extremities is warranted. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel