Citation Nr: 18156439 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-60 098 DATE: December 11, 2018 ORDER New and material evidence having been received; the claim for entitlement to service connection for right upper extremity peripheral neuropathy is reopened. New and material evidence having been received; the claim for entitlement to service connection for left upper extremity peripheral neuropathy is reopened. REMANDED Entitlement to service connection for left shoulder condition is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. FINDINGS OF FACTS 1. In a November 2009 decision, the RO denied entitlement to service connection for right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy. The Veteran did not appeal. 2. The evidence added to the record since the November 2009 RO decision was not previously submitted to agency decision makers, is not cumulative or redundant and, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The November 2009 rating decision that denied entitlement to service connection for right upper extremity peripheral neuropathy is final. 38 U.S.C. § 7105(c) (2012); 38 U.S.C. § 20.1103 (2017). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for right upper extremity peripheral neuropathy. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The November 2009 rating decision that denied entitlement to service connection for left upper extremity peripheral neuropathy is final. 38 U.S.C. § 7105(c) (2012); 38 U.S.C. § 20.1103 (2017). 4. New and material evidence has been received to reopen a claim of entitlement to service connection for left upper extremity peripheral neuropathy. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1980 to January 1984. The Veteran’s claim for service connection for a cervical spine disorder was characterized as a claim to reopen a previously denied claim. The claim was previously denied in an April 2006 rating decision. In August 2014, VA received additional service treatment records which had not been associated with the claim file at the time of the April 2006 rating decision. These service treatment records show the Veteran was treated for upper back pain. Thus, the service treatment records are relevant to the Veteran’s claim. According to 38 C.F.R. § 3.156 (c) (2017), where at any time after VA issues a decision on an original claim, VA receives relevant service records that existed and had not been associated with the claims file when it first decided the claim, VA will reconsider the claim on its merits. Such records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. See 38 C.F.R. § 3.156 (c)(1). See also 38 C.F.R. § 3.156 (c)(3) (reflecting that, an award made based all, or in part, on the newly received service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the general provisions of 38 C.F.R. § 3.156 (a) (concerning petitions to reopen based on new and material evidence) applicable to a previously decided claim). New and Material Evidence The Veteran petitions to reopen her previously denied service connection claim for right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy. For the following reasons, the Board finds reopening of these claims is warranted. Service connection for right upper extremity peripheral neuropathy and left upper extremity peripheral neuropathy were previously denied in a November 2009 rating decision because the RO found no evidence of a diagnosis or treatment for any peripheral neuropathy. The Veteran was notified of the November 2009 rating decision and of her appellate rights by letter dated November 5, 2009. The Veteran did not submit a notice of disagreement or initiate an appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.302. Moreover, new and material evidence was not of record within one year of this decision. See 38 C.F.R. § 3.156(b). Accordingly, the November 2009 rating decision is final. See 38 U.S.C. § 7105(c); 38 U.S.C. § 20.1103. In order to reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial. See 38 U.S.C. § 5108. VA regulation defines “new and material evidence” as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means existing 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). The new evidence must neither be 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 must raise a reasonable possibility of substantiating the claim. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a “low threshold” for reopening). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In April 2009, a medical treatment record noted bilateral upper extremity neuropathic pain and a central disc bulge. Furthermore, on her November 2016 VA Form 9, the Veteran noted she believes that lifting heavy tool boxes and helicopter parts contributed to her disabilities. At the time of the November 2009 rating decision, the medical evidence and the Veteran’s statement were not of record. Thus, the new evidence is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate service connection, and raises a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.356(a). As noted above, the credibility of the evidence is also presumed. Therefore, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for left shoulder condition is remanded. 2. Entitlement to service connection for a cervical spine disorder is remanded. 3. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. 4. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. The Board notes the Veteran’s STRs show various instances of left shoulder pain or scapular pain. Scapular pain was reported in December 1982, and the Veteran reported left shoulder pain in January 1983. Furthermore, chronic upper thoracic pain was noted in November 1982, which was diagnosed as a chronic muscle strain. The Veteran’s post-service medical records also show treatment for neck and shoulder pain. For instance, her problem list includes joint pain involving her shoulder region. Furthermore, in April 2009, a medical treatment record noted bilateral upper extremity neuropathic pain, and regarding the Veteran’s cervical spine the examiner noted, “On her neck exam, it was rather unimpressive for symptoms although she does have a history of a central disc bulge. I do not think this is the major contributing factor to her pain syndrome at present.” Degenerative changes of the cervical spine were reported in June 2016. Finally, on her November 2016 VA Form 9, the Veteran noted that she believes the above issues are due to her active service because while on active duty, she had to lift heavy tool boxes and helicopter parts as part of her work during active duty. Accordingly, the Veteran should be scheduled for VA examinations and opinions in order to determine the etiology and nature of these conditions. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to her claim. 2. Obtain examinations and opinions for the Veteran’s left shoulder, cervical spine, and bilateral upper extremity peripheral neuropathy claims. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. (a.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any current left shoulder condition, cervical spine disorder, or bilateral upper extremity peripheral neuropathy had its clinical onset during active service or is related to any in service disease, event, or injury, to include the Veteran’s occupational specialty as a helicopter mechanic. (b.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any current left shoulder condition, cervical spine disorder, or bilateral upper extremity peripheral neuropathy was caused by a service-connected disorder or any diagnosed disorder not service connected. (c.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) any current left shoulder condition, cervical spine disorder, or bilateral upper extremity peripheral neuropathy was aggravated (i.e., worsened) by a service-connected disorder or any diagnosed disorder not service connected. The examiner should elicit from the Veteran a complete history of her left shoulder, cervical spine, and bilateral upper extremity peripheral neuropathy symptomatology, including any in-service symptomatology and treatment; as well as her complete post-service history of left shoulder, cervical spine, or bilateral upper extremity peripheral neuropathy symptoms and treatment. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck