Citation Nr: 18144372 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 18-21 401 DATE: October 24, 2018 ORDER The application to reopen the previously disallowed claim for service connection for peripheral neuropathy of the left upper extremity is denied. FINDINGS OF FACT 1. By a decision entered in July 2014, the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut denied the Veteran’s claim for service connection for peripheral neuropathy of the left upper extremity; he was advised of the RO’s decision and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO’s July 2014 decision during the one-year period following the mailing of notice of that decision; nor was any new and material evidence received within a year. 3. The evidence received since the July 2014 rating decision is cumulative or redundant of the evidence of record at the time of the prior denial and does not relate to an unestablished fact necessary to substantiate the Veteran’s claim. CONCLUSIONS OF LAW 1. The RO’s July 2014 decision denying service connection for peripheral neuropathy of the left upper extremity is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2014). 2. New and material evidence has not been received to reopen the claim for service connection for peripheral neuropathy of the left upper extremity. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1966 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision. Application to Reopen The Veteran seeks to establish service connection for peripheral neuropathy of the left upper extremity. He has advanced argument to the effect that the condition is secondary to service-connected residuals of a fracture of the left clavicle. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Under applicable law, a Veteran who served on active duty in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, is presumed to have been exposed to an herbicide agent, absent affirmative evidence to the contrary. See 38 C.F.R. § 3.307(a)(6)(iii). VA regulations further provide that service connection is warranted for certain diseases as presumptively due to herbicide exposure. 38 C.F.R. § 3.309(e). Early onset peripheral neuropathy is one such disease. If a Veteran serves 90 days or more of active, continuous service after December 31, 1946, and manifests certain chronic diseases—including organic diseases of the nervous system—to a degree of 10 percent or more during the one-year period following his separation from that service, service connection for the condition may be established on a presumptive basis, notwithstanding that there is no in-service record of the disorder. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In the present case, the evidence reflects that the RO denied the Veteran’s claim for service connection for peripheral neuropathy of the left upper extremity by a decision entered in July 2014. Following a review of the claims file as it then existed, the RO concluded that although the record contained evidence that the Veteran suffered from pain and paresthesias in the forearm consistent with neurologic pain, the evidence did not establish that the disability was incurred in or aggravated by service; that it was manifest to a compensable degree within one year of the Veteran’s last exposure to herbicide agents during service; that it was otherwise due to in-service exposure to herbicide agents; or that it was related to a service-connected disability. In so concluding, the RO discounted an opinion offered by a VA neurologist (Dr. P.) to the effect that the pain and paresthesias in the Veteran’s forearm were very likely related to the (service-connected) neuropathy he had in his lower extremities. The Veteran was advised of the RO’s decision, and of his appellate rights, by letter dated later that same month. No pertinent evidence was received during the one-year period following mailing of notice of the RO’s July 2014 decision. See 38 C.F.R. § 3.156(b). Nor did the Veteran initiate an appeal within that time frame. As a result, the RO’s decision became final. 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “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 prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a) (2015). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the evidence received since the time of the RO’s July 2014 decision includes VA and private treatment records, a May 2016 VA examination report, and an August 2017 statement from a VA family nurse practitioner. In pertinent part, the May 2016 VA examiner opined that it was unlikely that the neuropathy of the Veteran’s left upper extremity neuropathy was related to service-connected residuals of a left clavicle fracture. The August 2017 VA family nurse practitioner diagnosed the Veteran with idiopathic peripheral neuropathy in his arms and legs and “ulnar neuropathy at the carpal tunnel syndrome as mononeuropathy superimposed on the peripheral neuropathy.” The additional evidence is not new and material. While some of the evidence is new, none of it provides support for the proposition that the peripheral neuropathy of the Veteran’s left upper extremity is related to service or a service-connected disability. As such, it does not relate to an unestablished fact necessary to substantiate the Veteran’s claim. The application to reopen the previously disallowed claim must be denied. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel