Citation Nr: 18149067 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-58 458 DATE: November 8, 2018 ORDER The appeal to reopen a claim of service connection for left lower extremity (LLE) peripheral neuropathy is granted. The appeal to reopen a claim of service connection for right lower extremity (RLE) peripheral neuropathy is granted. Service connection for LLE peripheral neuropathy is granted. Service connection for RLE peripheral neuropathy is granted. REMANDED Whether new and material evidence has been received to reopen the claim for service connection for left upper extremity (LUE) peripheral neuropathy is remanded. Whether new and material evidence has been received to reopen the claim for service connection for right upper extremity (RUE) peripheral neuropathy is remanded. Entitlement to service connection for heart condition is remanded. Entitlement to service connection for subfascial lipoma, left upper back, is remanded. Entitlement to a rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD) is remanded. Entitlement to a rating in excess of 10 percent for service-connected hiatal hernia and gastritis is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A March 1997 rating decision, which denied service connection for peripheral neuropathy based on a finding the Veteran did not have the condition in service or after service, is final. 2. Subsequent to the March 1997 rating decision, evidence was associated with the claims file that is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for LLE peripheral neuropathy and RLE peripheral neuropathy. 3. The preponderance of the evidence shows the Veteran’s bilateral lower extremity peripheral neuropathy is related to his herbicide agent exposure in service. CONCLUSIONS OF LAW 1. The March 1997 rating decision that denied service connection for peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. Evidence received since the final March 1997 determination is new and material, and the Veteran’s claims of entitlement to service connection for LLE peripheral neuropathy and RLE peripheral neuropathy are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for LLE peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for RLE peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from June 1967 to November 1970. The Board notes the question of whether new and material evidence has been received to reopen a claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end. Barnett, 83 F.3d at 1383. The Board has characterized the claims accordingly. Service Connection 1. Whether new and material evidence has been received to reopen the claim for service connection for LLE peripheral neuropathy 2. Whether new and material evidence has been received to reopen the claim for service connection for RLE peripheral neuropathy Generally, a claim which has been denied in a final unappealed RO decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran’s claim for service connection for peripheral neuropathy was denied initially by a March 1997 rating decision based on a finding that there was no evidence of the condition during service or following service. VA did not receive an appeal or new and material evidence within one year of that decision; therefore, the March 1997 rating decision is final. At the time of the March 1997 rating decision, the record consisted of service medical records and an August 1971 VA examination. Subsequent to the March 1997 rating decision, VA received updated VA treatment records, private treatment records, an April 2016 private treatment letter, and a November 2017 private treatment letter. This evidence qualifies as new evidence because it was not of the record at the time of the March 1997 rating decision and is not cumulative or redundant of the prior existing evidence of record. This evidence is material, in that it relates to unestablished facts necessary to substantiate the claim, specifically whether the Veteran has a diagnosis of lower extremity peripheral neuropathy. This new evidence raises a reasonable possibility of substantiating the Veteran’s service connection claim. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen his claims of entitlement to service connection for LLE peripheral neuropathy and RLE peripheral neuropathy. 3. Entitlement to service connection for LLE peripheral neuropathy 4. Entitlement to service connection for RLE peripheral neuropathy The Veteran contends his bilateral lower extremity peripheral neuropathy is related to his exposure to herbicide agents in service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id. For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, including early-onset peripheral neuropathy, shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(e). 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 early-onset peripheral neuropathy 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). Notwithstanding the foregoing presumption, a veteran is not precluded from establishing service connection with proof of direct causation. 38 U.S.C. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board recognizes the Veteran had bilateral lower extremity peripheral neuropathy during the appeal period. See April 2016 private treatment letter and November 2017 private treatment letter. The Board also recognizes VA has conceded the Veteran was exposed to herbicide agents during his service in Vietnam. Thus, the issue before the Board is whether there is a nexus between the Veteran’s exposure to herbicide agents and his bilateral lower extremity peripheral neuropathy. The Board finds the preponderance of the evidence supports the Veteran’s bilateral lower extremity peripheral neuropathy is as likely as not etiologically related to his exposure to herbicide agents in service. Service treatment records (STRs) are silent for complaint, treatment, or diagnosis of peripheral neuropathy in service. The preponderance of the evidence does not support the Veteran’s bilateral lower extremity peripheral neuropathy became manifest to a degree of 10 percent or more within a year of service. Therefore, presumptive service connection is not warranted. Post-service, Dr. G.B. submitted an April 2016 medical opinion letter. He stated the Veteran suffers from peripheral neuropathy of the bilateral lower extremities. He stated that in the absence of diagnostic testing demonstrating another origin or causation for his neuropathy, it is reasonable to conclude that herbicide agent exposure is at least partially responsible for his current symptomology. He opined it is probable to a reasonable degree of medical certainty that his peripheral neuropathy is related to his dioxin/herbicide exposure. He stated it is more likely than not that his peripheral neuropathy would not have occurred without exposure to dioxin. In November 2017, Nurse Practitioner N.L. submitted a medical opinion letter. He stated that the Veteran has a long history of chronic peripheral neuropathy in his lower extremities. The clinician opined it is likely that the Veteran has neuro-irritation due to exposure to herbicides in Vietnam. He stated the Veteran’s herbicide exposure is at least partially responsible for his current symptomatology. The Board gives great probative weight to the April 2016 medical opinion that it is probable the Veteran’s peripheral neuropathy is related to his dioxin/herbicide exposure. This opinion is credible because Dr. G.B. is a treating physician and familiar with the Veteran’s medical history. His rationale included discussion of the Veteran’s exposure to herbicide agents in service and lay statements of the Veteran. His opinion is supported by the November 2017 medical opinion, which the Board also found probative. There are no competing medical opinions of record regarding the etiology of the Veteran’s bilateral lower extremity peripheral neuropathy. Accordingly, as the preponderance of the evidence is in favor of the Veteran’s claim, service connection for LLE peripheral neuropathy and RLE peripheral neuropathy is warranted. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen the claim for service connection for left upper extremity (LUE) peripheral neuropathy 2. Whether new and material evidence has been received to reopen the claim for service connection for right upper extremity (RUE) peripheral neuropathy 3. Service connection for heart condition 4. Service connection for subfascial lipoma, left upper back 5. Entitlement to a rating in excess of 50 percent for service-connected PTSD 6. Entitlement to a rating in excess of 10 percent for service-connected hiatal hernia and gastritis 7. Entitlement to a TDIU A review of the claims file shows that there appears to be missing private treatment records that could be beneficial to the Veteran’s claim. First, the Veteran submitted September 2016 and January 2018 treatment visit summaries from Chattanooga Internal Medicine Group. The visit summary lists current health issues of calcification of native coronary artery, premature atrial contraction, PTSD, chronic epigastric pain, GERD, diverticulitis, and weight loss. VA should request full treatment records for these visits. Second, the Veteran submitted a January 2018 disability benefit questionnaire (DBQ) for esophageal conditions from Dr. M.Y. The most recent treatment records in the claims file from Dr. M.Y. are from April 2009. The January 2018 DBQ references recent testing that is not included in the claims file. The matter of TDIU is inextricably intertwined with the claims being remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is therefore required as well. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Chattanooga Internal Medicine Group for April 2015 to the present. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 2. Ask the Veteran to complete a VA Form 21-4142 for Dr. M.Y. at Galen Medical Group for April 2009 to the present. See January 2018 DBQ. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. (Continued on the next page)   3. Contact the Veteran and ask he identify the provider(s) of any additional treatment or evaluation he has received for peripheral neuropathy of the upper extremities, heart condition, subfascial lipoma of the back, PTSD, or hiatal hernia and gastritis. For any provider identified, ask the Veteran to complete a VA Form 21-4142 for the provider. Make two requests for the authorized records from, unless it is clear after the first request that a second request would be futile. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel