Citation Nr: 18153259 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 17-48 057 DATE: November 28, 2018 ORDER New and material evidence having been received, the claim for service connection for peripheral neuropathy is reopened. REMANDED ISSUE Entitlement to service connection for a sciatic nerve or sacroiliac joint disorder, to include as secondary to service-connected bilateral foot impairment from bipedial lymphangiogram, is remanded. FINDINGS OF FACT 1. In a September 1996 decision, the Board of Veterans’ Appeals (Board) denied the issue of entitlement to service connection for peripheral neuropathy. The Veteran did not appeal that decision to the United States Court of Appeals for Veterans Claims (Court), file a motion to vacate, file a motion for reconsideration, or file a motion to revise the decision based on clear and unmistakable error. 2. The evidence received since the September 1996 Board decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection. CONCLUSIONS OF LAW 1. The September 1996 Board decision that denied service connection for peripheral neuropathy is final. 38 U.S.C. §§ 7103, 7104, 7111, 7252, 7266 (2012); 38 C.F.R. §§ 20.1100, 20.1104 (2017). 2. The evidence received subsequent to the September 1996 Board decision is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1976 to July 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Historically, in a March 1994 rating decision, the RO denied a claim for service connection for peripheral neuropathy. The Veteran filed a notice of disagreement, and the RO issued a statement of the case in May 1994. Thereafter, the Veteran submitted a substantive appeal. At a December 1994 hearing, the Veteran’s representative stated that he was not really claiming peripheral neuropathy. Nevertheless, the Veteran was afforded a VA examination in December 1994 examination, which addressed peripheral neuropathy. In July 1995, the hearing officer denied service connection for peripheral neuropathy and granted service connection for chronic low back pain. The decision was also reflected in an August 1995 supplemental statement of the case. The Veteran submitted another appeal to the Board in August 1995, but did not specify peripheral neuropathy. However, the Veteran’s representative submitted briefs supporting the claim for peripheral neuropathy in April 1996 and June 1996, and the RO certified the issue for appeal. In a September 1996 decision, the Board denied the claim for service connection for peripheral neuropathy. The Veteran filed a claim for service connection in July 2015, for sciatic nerve damage and the right sacroiliac joint (SI joint). The Agency of Original Jurisdiction (AOJ) adjudicated the issue as falling under the same disorder as peripheral neuropathy, which had been previously denied by the Board in December 1994. However, the Veteran has clarified that he is claiming a new and different disorder separate from peripheral neuropathy. See July 2015 notice of disagreement. New claims that are based on distinctly and differently diagnosed diseases or injuries than a previously denied claim must be considered independently, despite similar symptoms. Therefore, new and material evidence is not required in such cases. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding sensorineural hearing loss was distinct from conductive hearing loss). In Velez v. Shinseki, 23 Vet. App. 199 (2009), the Court of Appeals for Veterans Claims looked to three factors to distinguish a new claim from a petition to reopen: 1) what symptoms were previously used in describing the prior claim, 2) what the medical evidence showed at the time of the prior denials, and 3) how broadly the RO adjudicated the scope of the prior claim. The Board finds that the previously denied peripheral neuropathy claim is not distinct from the Veteran’s July 2015 claim for a SI joint and sciatic nerve disorder. Indeed, they both involve the lower extremity and similar nerve symptoms. Therefore, new and material evidence is required to reopen the claim. Nevertheless, there is no prejudice to the Veteran, as the Board has determined that there is new and material evidence to reopen the claim. New and material evidence. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist. Id. at 118. As discussed above, the Board previously considered and denied the Veteran’s claim for service connection for peripheral neuropathy in a September 1996 decision. In particular, the Board found that the evidence did not demonstrate that the evidence showed the Veteran had peripheral neuropathy. The Veteran did not appeal the September 1996 Board decision to the Court, nor did he submit a motion for reconsideration, vacatur, or revision based on clear and unmistakable error. As such, the decision became final. 38 U.S.C. § 7105, 38 C.F.R. § 20.1100, 20.1105. In July 2015, the Veteran filed a claim for service connection for an SI joint or sciatic nerve disorder. Because the Board finds the current issue on appeal is not distinct from the prior claim, new and material evidence is required. The evidence obtained since the September 1996 Board decision includes current diagnoses of SI joint disease and neuropathy, diagnostic imaging results, treatment records pertaining to the Veteran’s SI joint pain, and the Veteran’s contentions that his joint pain is due to his service-connected foot disability. Such evidence was not considered at the time of the September 1996 decision and relates to a previously unestablished fact. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran’s claim. 38 C.F.R. § 3.156(a). However, further development is necessary before the merits of the Veteran’s claim can be addressed. REASONS FOR REMAND The Veteran has contended that he has a sciatic hip joint pain caused by a bi-pedal lymphangiogram performed in service. See September 2017 VA Form 9. He is currently service-connected for bilateral foot impairment from a bi-pedial lymphangiogram. Specifically, he has asserted that his sciatic problems began around 2002 or 2003 and are due to his service-connected disability that causes him to limp, which in turn has caused hip and SI joint pain. See id; see also July 2015 Notice of Disagreement. The Veteran was afforded a VA examination for peripheral neuropathy in February 2016. The VA examiner did not diagnose the Veteran with peripheral neuropathy, a sciatic nerve disorder, or radiculopathy. However, the examiner did not address the medical records pertaining to treatment for SI joint pain, including medication and injections, or the diagnoses of SI joint disease and neuropathy status post bi-pedal lymphangiogram, mild scoliosis, endplate changes and possible facet arthropathy, and rudimentary disc with questionable facets in March 2012. Therefore, the Board finds that a VA examination and medical opinion are needed. The matter is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his sciatic nerve and SI joint pain that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the Veteran should be afforded a VA examination to determine the nature and etiology of any sciatic nerve or sacroiliac joint disorder that may be present The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should also note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that the Veteran has a sciatic nerve or sacroiliac joint disorder that manifested in service or that is otherwise causally or etiologically related thereto. He or she should also opine as to whether it is at least as likely as not that the Veteran has sciatic nerve or sacroiliac joint disorder that was caused by or permanently aggravated by his service-connected bilateral foot impairment from bipedial lymphangiogram and/or chronic low back pain. In rendering this opinion, the examiner should specifically consider the previous diagnoses of SI joint disease, as well as all diagnostic imaging results. Specifically, the VA examiner should refer to the April 2006 and September 2010 diagnoses of SI joint disease, the March 2012 diagnoses of neuropathy status-post bi-pedal lymphangiogram, mild scoliosis, endplate changes, possible facet arthropathy, and rudimentary disc, the February 2006 x-ray showing minimal degenerative changes to the lumbar spine, the June 2010 MRI, and August 2010 MRI. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should complete any further development that may be indicated as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Kuczynski