Citation Nr: 1807521 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-17 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2017, the Veteran provided testimony before the undersigned Veterans Law Judge at a video conference hearing. A transcript of the hearing is of record. FINDINGS OF FACT 1. An April 2009 RO decision denied entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure. 2. Evidence received since the April 2009 RO decision became final is new and raises the reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure. 3. The most probative evidence of record shows that the Veteran has a current diagnosis of peripheral neuropathy of the bilateral upper and lower extremities that is causally related to his presumed in-service herbicide exposure. CONCLUSIONS OF LAW 1. An April 2009 decision, which denied entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure is final. 38 U.S.C.A. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2016). 2. New and material evidence sufficient to reopen the previously denied claim of service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure has been received. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. §§ 3.156 (a), 20.1105 (2016). 3. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5107 (West 2016); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As an initial matter, the decision herein reopens the claim for service connection, and grants entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities. These awards represent a grant of each specific issue on appeal. Therefore, further discussion as to VA's duties to notify and assist as to those issues is rendered moot. New and Material Evidence to Reopen An April 2009 RO decision denied entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure on the basis that the Veteran's peripheral neuropathy had not manifested to a compensable degree within a year of service. No appeal was taken from that determination, and new and material evidence was not received within the one year period to appeal the determination. Thus, the April 2009 rating decision is final. 38 U.S.C. § 7105. In May 2012, the Veteran again requested service connection for peripheral neuropathy due to exposure to an herbicide in service. In the March 2012 rating decision now on appeal, the claim was reopened, and again denied on the merits de novo. The Board must determine whether new and material evidence has been presented before it can reopen a claim to re-adjudicate the issue going to the merits. 38 C.F.R. § 20.1105 (2015). The issue of reopening a claim goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board is required to first consider whether new and material evidence is presented before the merits of a claim can be considered regardless of the RO's action. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA may reopen and review a claim, which has been previously denied, if new and material evidence is received or submitted by or on behalf of a Veteran. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (a) (2015). New evidence means existing 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New evidence, in the form of a December 2012 private medical opinion indicating that the Veteran's peripheral neuropathy is likely due to Agent Orange, has been received. This new evidence relates to an unestablished fact, namely supporting evidence that a nexus exists between the Veteran's claimed condition and service. Therefore, the evidence is new and material. Accordingly, the claim of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to herbicide exposure is reopened. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156 (a). Service Connection The March 2012 rating decision denied the petition to reopen the claim for service connection for peripheral neuropathy, and as such, did not consider the claim for service connection, de novo. However, in light of the grant of the reopened claim herein, which is favorable to the Veteran, the Veteran is not prejudiced by the Board's consideration of the reopened claim, de novo, at this time. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection on a direct-incurrence basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. For certain chronic disorders, as identified at 38 C.F.R. § 3.309(a), service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). In addition, service connection on the basis of continuity of symptomatology can only be established for the chronic diseases as specified at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A veteran who served in Vietnam during the Vietnam Era is presumed to have been exposed to herbicides during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including early-onset peripheral neuropathy, are deemed service-connected. 38 C.F.R. § 3.309(e). For presumptive service connection, early-onset peripheral neuropathy must be manifested to a degree of 10 percent or more within one year after the last date on which the Veteran was exposed to an herbicide agent during active service. 38 C.F.R. § 3.307 (a)(6)(ii). Effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised to replace the term "acute and subacute" peripheral neuropathy with "early-onset" peripheral neuropathy and removing the note stating that the term "acute and subacute peripheral neuropathy" meant transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. See 78 Fed. Reg. 54,763 (Sept. 6, 2013). It was further noted that the amendment clarified that VA will not deny presumptive service connection for early-onset peripheral neuropathy solely because the condition persisted for more than two years after the date of the last herbicide exposure. However, it was noted that it does not change the requirement that peripheral neuropathy must have become manifest to a degree of ten percent or more within one year after a veteran's last in-service exposure in order to qualify for the presumption of service connection. In addition, regulations governing presumptive service connection based on exposure to Agent Orange do not preclude a veteran from establishing service connection with proof of actual direct causation on a nonpresumptive direct-incurrence basis. Combee v. Brown, 34 F.3d 1039 (1994). As to demonstration of current disability, the first element for service connection under Shedden, post service VA and private treatment records are positive for findings of peripheral neuropathy of the bilateral upper and lower extremities, and demonstrate the condition was first diagnosed in 2004. Thus, the Veteran has current disabilities of peripheral neuropathy of the bilateral upper and lower extremities. While service treatment records are absent any findings of peripheral neuropathy, based on the Veteran's active duty service in the Republic of Vietnam from 1966 to 1968, as documented in his service personnel records, he is presumed to have been exposed to herbicides in service. Hence, the second element necessary for service connection, demonstration of an injury in service, has been met. The Board will now consider the third element necessary for service connection, whether there is demonstration of a nexus between current disability and service. The Veteran testified that he first noticed symptoms of his condition when he returned home from service in the fall of 1968. The Veteran stated that he was teaching and coaching basketball and started to have problems with his hands, arms, feet, and legs. He stated that his extremities would become more numb throughout the day and start tingling. He testified that he went to his primary doctor around that time, and was referred to a hospital in Knoxville that is no longer in existence. The Veteran was unable to obtain those records. The Veteran reported that he was not diagnosed with peripheral neuropathy at the time. The Veteran's private medical records from the period after service are sparse and taken on notecards, but do not show reports of peripheral neuropathy. The Veteran does contend that he reported pain in his chest area, which was part of his initial report of symptoms in 1969. Private records from May 1970 confirm the report of heart pain, but do not mention numbness or tingling. The Veteran's private rheumatologist provided a letter in December 2012 that documented the Veteran's course of treatment. The provider stated that the Veteran had been a patient of his since 2000, but that his symptoms were not accurately diagnosed via electro diagnostic study as peripheral neuropathy until 2004. The provider noted that the Veteran had undergone extensive evaluation in his office and through the VA. The provider noted that in seeking to find the source of the Veteran's condition, diabetes, liver disease, bone marrow dyscrasias, autoimmune disease, paraproteinemias, viruses, hepatitis, lupus, vitamin deficiencies, thyroid disease, malignancies, and numerous other conditions were ruled out as causes. The provider concluded his letter by stating that given the chronicity of his symptoms, their severity, and atypical features with potential, non-mechanical cord involvement without demyelinating plaques, and the Veteran's history of exposure to Agent Orange, as well as the failure of any other identifiable contributing etiology, exposure to Agent Orange would appear to be, by exclusionary means, an etiology that is more than likely a tenable explanation for his neuropathy. The Board notes that the Veteran is competent to report his symptoms of numbness and tingling, and the Board finds him credible as to the reports of onset of those symptoms. However, the Veteran is not competent to attribute those symptoms to a specific cause. The Board notes that early-onset peripheral neuropathy, a disability that is presumed to be related to in-service herbicide exposure, has not been shown by the evidence of record. However, in view of the totality of the evidence, including the presumed in-service herbicide exposure, the documented findings of bilateral upper extremity peripheral neuropathy during the appeal period, the favorable medical opinion provided by the December 2012 medical provider, and the holding in Combee, the Board has determined that the evidence is in equipoise as to whether the Veteran's peripheral neuropathy of the bilateral upper and lower extremities is causally related to his in-service herbicide exposure. Resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy is warranted. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received and the claim of entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is reopened. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs