Citation Nr: 18149121 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 17-64 076 DATE: November 8, 2018 ORDER The claim of entitlement to service connection for bilateral lower extremity peripheral neuropathy due to herbicide exposure is reopened. Service connection for bilateral lower extremity peripheral neuropathy due to herbicide exposure is granted. FINDINGS OF FACT 1. A September 2011 rating decision denied the claim of entitlement to service connection for bilateral lower extremities peripheral neuropathy due to herbicide exposure on the ground that the condition did not become manifest to a compensable degree within one year after the last exposure to herbicide agents. 2. The Veteran did not express an intent to appeal the September 2011 rating decision and VA did not receive new and material evidence within one year of that decision. Accordingly, the decision is final. 3. Subsequently received evidence relates to unestablished facts necessary to substantiate the claim for service connection for bilateral lower extremities peripheral neuropathy due to herbicide exposure, is not cumulative or redundant of the evidence in the record in September 2011 and otherwise raises a reasonable possibility of substantiating the claim. 4. The Veteran is presumed to have been exposed to herbicide agents as a result of his service in the Republic of Vietnam. 5. The Veteran’s currently diagnosed bilateral lower extremity peripheral neuropathy is due to presumed in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral lower extremity peripheral neuropathy due to herbicide exposure. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156. 2. The criteria for service connection for bilateral lower extremity peripheral neuropathy due to herbicide exposure are met. 38 U.S.C. §§ 1110, 1111, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3.304, 3.307, 3.309, 3.313. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to October 1969. This matter comes before the Board on an appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900. New and material evidence The Veteran’s claim seeking entitlement to service connection for bilateral lower extremity peripheral neuropathy due to herbicide exposure was denied in a September 2011 rating decision. The Veteran did not file a notice of disagreement and took no action to appeal or seek reconsideration. In addition, VA did not receive new and material evidence within one year of that decision. Accordingly, the September 2011 rating decision is considered final. 38 C.F.R. §§ 20.302(b)(1), 20.1103. Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Generally, the credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence for service connection for bilateral lower extremities peripheral neuropathy due to herbicide exposure considered at the time of the September 2011 rating decision consisted of the Veteran’s service records, and VA and private treatment records. Service connection was denied because although the Veteran had a current diagnosis of peripheral neuropathy, the condition did not become manifest to a compensable degree within one year after the last exposure to herbicides. The evidence received since the September 2011 decision consists of more recent private treatment records. This evidence is new because it was not previously submitted and it is material because it relates to direct service connection for bilateral lower extremity peripheral neuropathy due to herbicide exposure. To the extent that the private medical records were received after the most recent statement of the case and have not been considered by the Agency of Original Jurisdiction (AOJ), the Veteran has explicitly waived review of the evidence by the AOJ and requested that the Board take jurisdiction and decide the appeal on the merits. 38 C.F.R. § 20.1304(c). As the private treatment records establish a nexus between the Veteran’s condition and his exposure to herbicides, the newly submitted evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.303. The requirements of 38 C.F.R. § 3.156(a) have been met and the claim for service connection for bilateral lower extremities peripheral neuropathy due to herbicide exposure is reopened. Service connection Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires evidence of a current disability, an in-service incurrence, disease or injury and a causal relationship between the current disability and the in-service incurrence, disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The Board may consider presumptive service connection for “chronic diseases” on three bases: (1) chronicity during service, (2) continuity of symptomatology since service, and (3) manifestations to a degree of 10 percent disabling or more within one year of the Veteran’s separation from service. 38 C.F.R. §§ 3.303(b), 3.307(a)(3); 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). There is also a rebuttable presumption of service connection for diseases associated with herbicide exposure. 38 U.S.C. §§ 1113, 1116; 38 C.F.R. §§ 3.307, 3.309. Exposure to herbicides during service is presumed for veterans stationed in the Republic of Vietnam between January 9, 1962 and May 7, 1975. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii); McCartt v. West, 12 Vet. App. 164, 168 (1999). The failure to establish a presumptive basis of service connection does not preclude a veteran from establishing service connection on another basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 U.S.C. § 1113(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Here, the Veteran has a current diagnosis of bilateral lower extremity peripheral neuropathy. The Veteran related to his treating physician that numbness in his legs had its onset in 1974. In an August 1996 statement in support of his claim, the Veteran related “a loss of sensation on legs” as one of his conditions. Private treatment records reflect a diagnosis of bilateral peripheral neuropathy in May 2002. A nerve conduction velocity test (NCV) and electromyelogram (EMG) conducted in June 2017 revealed electrophysical evidence of bilateral sensory-motor peripheral neuropathy in the Veteran’s lower extremities. Accordingly, the first element for service connection is satisfied. The Veteran’s military personnel records reflect his service in Vietnam and, accordingly, the Veteran is also able to satisfy the second element for service connection based on his presumed exposure to herbicides. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In support of the nexus element for service connection, the Veteran relies on a March 2017 statement from his treating physician attributing his bilateral lower extremity peripheral neuropathy to his presumed in-service herbicide exposure. The treating physician noted that he has treated the Veteran for his complaints of muscle weakness and peripheral neuropathy symptoms since August 2002. The physician states that the Veteran’s exposure to herbicides “is clearly the cause of all his peripheral sensory-motor neuropathies.” The rationale provided by the physician includes the facts that the Veteran does not have other metabolic or systemic conditions (except hypertension) and there is no evidence of any significant damage to the Veteran’s spinal cord or joints. According to the Veteran’s treating physician, his case should be considered as affected by herbicide exposure because “[t]here is no other explanation for explaining his conditions.” The Board finds the opinion of the treating physician linking the Veteran’s bilateral lower extremities peripheral neuropathy to his herbicide exposure probative and entitled to weight. The treating physician offers a rationale for his conclusion and his opinion is based on the Veteran’s medical history, clinical findings and the physician’s long-standing treatment of the condition. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 140 (2007). Also, there is no evidence of record directly contradicting the treating physician’s conclusion. The Veteran’s request for service connection has been denied on the ground that the condition did not manifest within one year of service. As noted, however, the unavailability of presumptive service connection does not preclude direct service connection. See Combee, 34 F.3d. at 1042. Based on the foregoing, service connection for bilateral lower extremity peripheral neuropathy due to herbicide exposure is granted. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel