Citation Nr: 18158665 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-01 904 DATE: December 17, 2018 ORDER The application to reopen a claim of entitlement to service connection for left upper extremity peripheral neuropathy is granted. The application to reopen a claim of entitlement to service connection for right upper extremity peripheral neuropathy is granted. The application to reopen a claim of entitlement to service connection for left lower extremity peripheral neuropathy is granted. The application to reopen a claim of entitlement to service connection for right lower extremity peripheral neuropathy is granted. REMANDED The issue of entitlement to service connection for left upper extremity peripheral neuropathy, to include claimed as secondary to service-connected diabetes mellitus is remanded. The issue of entitlement to service connection for right upper extremity peripheral neuropathy, to include claimed as secondary to service-connected diabetes mellitus is remanded. The issue of entitlement to service connection for left lower extremity peripheral neuropathy, to include claimed as secondary to service-connected diabetes mellitus is remanded. The issue of entitlement to service connection for right lower extremity peripheral neuropathy, to include claimed as secondary to service-connected diabetes mellitus is remanded. FINDINGS OF FACT 1. In a November 2012 rating decision, the Agency of Original Jurisdiction (AOJ) denied a claim of service connection for left upper extremity peripheral neuropathy; the Veteran did not perfect an appeal to this decision. New and material evidence was not received within one year of notification. 2. The evidence added to the claims files after the November 2012 rating decision relates to an unestablished fact necessary to substantiate the claim and is not cumulative or redundant of that previously considered. 3. In a November 2012 rating decision, the AOJ denied a claim of service connection for right upper extremity peripheral neuropathy; the Veteran did not perfect an appeal to this decision. New and material evidence was not received within one year of notification. 4. The evidence added to the claims files after the November 2012 rating decision relates to an unestablished fact necessary to substantiate the claim and is not cumulative or redundant of that previously considered 5. In a November 2012 rating decision, the AOJ denied a claim of service connection for left lower extremity peripheral neuropathy; the Veteran did not perfect an appeal to this decision. New and material evidence was not received within one year of notification. 6. The evidence added to the claims files after the November 2012 rating decision relates to an unestablished fact necessary to substantiate the claim and is not cumulative or redundant of that previously considered 7. In a November 2012 rating decision, the AOJ denied a claim of service connection for right lower extremity peripheral neuropathy; the Veteran did not perfect an appeal to this decision. New and material evidence was not received within one year of notification. 8. The evidence added to the claims files after the November 2012 rating decision relates to an unestablished fact necessary to substantiate the claim and is not cumulative or redundant of that previously considered CONCLUSIONS OF LAW 1. The November 2012 rating decision that denied a claim of service connection for left upper extremity peripheral neuropathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. The evidence received after the November 2012 decision denying a claim of service connection left upper extremity peripheral neuropathy is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The November 2012 rating decision that denied a claim of service connection for right upper extremity peripheral neuropathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 4. The evidence received after the November 2012 decision denying a claim of service connection right upper extremity peripheral neuropathy is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The November 2012 rating decision that denied a claim of service connection for left lower extremity peripheral neuropathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 6. The evidence received after the November 2012 decision denying a claim of service connection left lower extremity peripheral neuropathy is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The November 2012 rating decision that denied a claim of service connection for right lower extremity peripheral neuropathy is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 8. The evidence received after the November 2012 decision denying a claim of service connection right lower extremity peripheral neuropathy 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by the RO. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Reopening of Claims – New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as evidence not previously submitted to agency decision-makers. 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. 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold for the reopening of claims. The Court of Appeals for Veterans Claims (Court) noted that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which, does not require new and material evidence as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for left and right, upper and lower extremity peripheral neuropathies The RO denied the Veteran’s claims of service connection for left and right, upper and lower extremity peripheral neuropathies in a November 2012 rating decision. The RO found that there was no nexus between the left and right, upper and lower extremity peripheral neuropathies and a period of service, to include presumed herbicide exposure. The evidence considered in November 2012 included the service treatment records, VA treatment records from the VA Medical Center (VAMC) in San Diego dated from August 2011 through November 2012, VA treatment records from the VAMC in Omaha dated from July 2003 to September 2003, VA treatment records from the VAMC in Long Beach dated from February 2010 to October 2012 and the October 2012 report of VA examination. In the October 2012 report of VA examination, the physician noted that multiple VA treatment records stated that the Veteran had Charcot-Marie-Tooth (CMT) disease and found that the Veteran’s CMT disease was causing his neuropathy symptoms from his ankles to his toes. Lyrica resolved the symptoms. The Veteran was informed of the November 2012 decision and apprised of his appellate rights, but he did not perfect a timely appeal. Therefore, the November 2012 rating decision became final. 38 C.F.R. § 20.1103. In July 2013, the Veteran requested that his claim be reopened. The evidence received since the November 2012 rating decision includes lay statements by the Veteran asserting that his peripheral neuropathy of the bilateral upper and bilateral lower extremities had their onset secondary to his service-connected diabetes or due to event or incident of his period of service, to include presumed herbicide exposure therein. The February 2014 report of VA examination documents the physician’s determination that the Veteran had a long history of CMT with bilateral lower extremity neuropathy. The physician reported that the Veteran’s A1c levels were not indicative of a level of blood glucose consistent with the development of neuropathy. A January 2015 VA neurology note documents an impression of peripheral neuropathy, clinically sensory greater than motor. The neurologist reported that the cause was unknown but stated that CMT may be playing a role. The neurologist also acknowledged that diabetes may be playing a role in the more recent increased pain/dysesthesiae In the October 2016 report of VA examination addendum, the physician opined that the Veteran’s bilateral lower extremity peripheral neuropathy was less likely than not proximately due to or the result of his service-connected diabetes mellitus. The physician explained that the Veteran had a family history and personal history of CMT with associated bilateral lower extremity foot pain and numbness dating to 2004. The physician reiterated that the Veteran’s A1c levels were not indicative of a level of blood glucose consistent with the development of neuropathy. In the November 2016 report of VA examination addendum, the physician opined that the Veteran’s bilateral upper extremity neuropathies were less likely as not secondary to his service-connected diabetes mellitus. The physician explained that the Veteran had a well-known history of CMT. A November 2016 private treatment record reflects the physician’s assessment that the Veteran had idiopathic peripheral neuropathy secondary to his Agent Orange exposure. The physician reported that the Veteran never had CMT disease. This additional evidence is not cumulative or redundant of the evidence previously considered. New and material evidence has been presented to reopen the Veteran’s previously denied claims of service connection for left and right, upper and lower extremity peripheral neuropathies. REASONS FOR REMAND 1. Entitlement to service connection for left and right, upper and lower extremity peripheral neuropathies, to include claimed as secondary to service-connected diabetes mellitus is remanded. Remand is required to afford the Veteran an updated VA examination to determine whether his left and right, upper and lower extremity peripheral neuropathies onset due to event or incident of service, to include exposure to herbicide agents therein or whether his left and right, upper and lower extremity peripheral neuropathies were caused or aggravated by his service-connected diabetes mellitus. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and likely etiology of the left and right upper and lower extremity peripheral neuropathies The VBMS file must be reviewed by the examiner. All indicated tests and studies, to include nerve conduction and EMG tests, should be performed and the clinical findings should be reported in detail. A comprehensive clinical history should be obtained, to include a discussion of the Veteran’s documented medical history and assertions. After reviewing the entire record, the examiner should provide an opinion with supporting explanations as to the following: (A) Does the Veteran have left and right, upper and lower extremity peripheral neuropathies that onset due to event or incident of his period of service, to include exposure to herbicide agents therein? (B) Was the Veteran’s left and right, upper and lower extremity peripheral neuropathies CAUSED or AGGRAVATED (worsened) by the service-connected diabetes mellitus? If aggravation of any left or right, upper or lower extremity peripheral neuropathies by service-connected diabetes mellitus is shown, the examiner should objectively quantify, to the extent possible, the degree of aggravation beyond the level of impairment had no aggravation occurred. As indicated above, the examiner must review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: *September 2004 VA treatment record reflects the Veteran’s complaint of bilateral feet pain from ankles through the toes with numbness and heaviness. There was questionable CMT disease. *December 2009 VA treatment record documents assessment of CMT. The Veteran was to bring in a copy of a private neurology evaluation and EMG study for review. The examiner noted that the Veteran was responding well to Lyrica. *October 2012 Report of VA diabetes mellitus examination reflects that EMG performed in 2004 was normal. The physician noted that there were several treatment records stating that the Veteran has CMT disease and found that the Veteran’s CMT disease was causing his neuropathy symptoms from his ankles to toes. Lyrica resolved the symptoms. *December 2012 nerve conduction and EMG findings showed large fiber sensorimotor polyneuropathy affecting the lower but not the upper extremities. *February 2014 Report of VA diabetes mellitus examination reflects that the Veteran had a long history of CMT with bilateral lower extremity neuropathy. The physician determined that A1c levels were not indicative of a level of blood glucose consistent with the development of neuropathy. *January 2015 VA treatment record documents an impression of “peripheral neuropathy, clinically sensory greater than motor. Cause is uncertain – although CMT may be playing a role, this is an uncommon disorder and usually presents much earlier in life. Diabetes may be playing a role in more recent increased pain/dysesthesiae.” *October 2016 Report of VA examination addendum documents the physician’s opinion that the left and right lower extremity neuropathies were less likely than not proximately due to or the result of the Veteran’s service-connected diabetes mellitus. The physician noted that the Veteran had a family and personal history of CMT disease with associated bilateral foot pain and numbness dating back to 2004. The physician concluded that the Veteran had a long history of CMT disease with bilateral lower extremity neuropathy and his A1c levels were not indicative of a level of blood glucose consistent with the development of neuropathy. *November 2016 Report of VA examination addendum documents the physician’s opinion that the left and right upper extremity neuropathies were less likely than not secondary to the Veteran’s service-connected diabetes mellitus. The physician noted that the Veteran had a family and personal history of CMT disease. *November 2016 private treatment record documents an assessment of idiopathic peripheral neuropathy secondary to Agent Orange exposure. The physician reported that the Veteran had never had CMT disease. (Continued on the next page)   THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Jackson, Counsel