Citation Nr: 1815904	
Decision Date: 03/15/18    Archive Date: 03/23/18

DOCKET NO.  15-38 374	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral peripheral neuropathies.

2.  Entitlement to service connection for peripheral neuropathy of the left lower extremity.

3.  Entitlement to service connection for peripheral neuropathy of the right lower extremity.

4.  Entitlement to a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment, or for adaptive equipment only.
	

REPRESENTATION

Veteran represented by: 	Disabled American Veterans 


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Air Force from January 1951 to June 1975. 

These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c).

The claims of service connection for peripheral neuropathies and automobile or other conveyance and adaptive equipment or adaptive equipment only are REMANDED to the Agency of Original Jurisdiction (AOJ) and are addressed in the REMAND portion of this decision.  


FINDINGS OF FACT

1.  Service connection for bilateral peripheral neuropathies was denied in a March 2000 rating decision, which was not appealed. The RO notified the Veteran of the decision.

2. Evidence received subsequent to the March 2000 rating decision is not cumulative or redundant of the evidence previously of record, relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The March 2000 rating decision which denied service connection for bilateral peripheral neuropathies is final and binding.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017).

2.  New and material evidence has been received since the March 2000 rating decision and the claim of entitlement to service connection for bilateral peripheral neuropathies is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence

As the Veteran's petition to reopen his claim of service connection for bilateral peripheral neuropathies is presently granted, no discussion of the VCAA is necessary.  

In a March 2000 rating decision, the RO denied the Veteran's claim of service connection for bilateral peripheral neuropathies.  The Veteran did not appeal the claim or submit new and material evidence within one year.  Therefore, the rating decision is final.  

Regardless of the whether the RO on its own determination has reopened the claim; the Board has a jurisdictional responsibility to consider whether it was proper for the RO to do so. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented and the Board will look to the record to determine if indeed such evidence has been submitted or secured. See 38 U.S.C.A. § 5108. 

New and material 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156.

The threshold for the evidence required to reopen a claim is low. The definition of new and material evidence is 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).

The Veteran contended that his bilateral peripheral neuropathies were a result of his exposure to herbicides in service.  Evidence on file at that time of the March 2000 rating decision included his separation examination, treatment records and a VA examination.  The Veteran's claim was denied because there was no evidence that his peripheral neuropathies were incurred during or as a result of service.

The evidence received since the March 2000 rating decision includes evidence that is both new and material to the claim.  Specifically, a February 2005 neurosurgery consultation report shows the Veteran suffers from a chronic severe peripheral neuropathy in the lower extremities.  A May 2005 VA examination indicated that the Veteran had a diagnosis of degenerative disc disease of the lower spine with residuals of lumbar radiculopathy and painful neuropathy, bilateral feet.  The Veteran also underwent a VA examination in July 2014, in which the examiner stated that the Veteran was service-connected for peripheral neuropathies.   As this evidence indicates that the Veteran's peripheral neuropathies may be due to his service or service-connected disorders, the Board finds this evidence to be new and material and therefore, the claim is reopened and will be considered on the merits.

ORDER

New and material evidence has been received and the Veteran's petition to reopen a claim of service connection for bilateral peripheral neuropathies is granted.  

REMAND

With regard to the Veteran's claims of service connection for bilateral peripheral neuropathies, the Board finds that an addendum VA examination is necessary prior to adjudication.  The Veteran underwent a VA examination in July 2014.  The examiner opined as follows:

"The Veteran's SC peripheral neuropathies relate to his SC neck and lower back conditions.  However, the Veteran has an ascending peripheral neuropathy, the etiology of which is unclear.  The EMG shows this condition.  This condition is different from the SC peripheral neuropathies.  Of course, he has these concurrently, and separating them out at this point is problematic.  However, the ascending bilateral leg neuropathies clearly go beyond the SC peripheral neuropathies.  Also, the Veteran has documented bilateral carpal tunnel syndrome which is also not related to his SC conditions.  It is very difficult to separate out the upper body ascending peripheral neuropathy effects from the SC peripheral neuropathies.  But it is clear that the ascending polyneuropathy is superimposed on the existing SC neuropathies.  In the past the Veteran applied for SC for polyneuropathy for Agent Orange exposure, but was denied SC. It is likely that his gait disorder and widespread muscle atrophy are more likely due to the ascending polyneuropathy than to his SC bilateral peripheral neuropathies caused by spinal disc disease."

Although the Veteran has claimed service connection for his peripheral neuropathies based on exposure to herbicides, he is not precluded from establishing service connection on another basis.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  It is unclear from the VA examiner's opinion as to whether the Veteran's peripheral neuropathies are caused by or aggravated by his service-connected back disorder.  Additionally, it is unclear whether there are symptoms of the peripheral neuropathies for which the Veteran is claiming service connection that are separate and distinct from the symptoms of the radiculopathies for which he is presently service-connected.  Therefore, a clarifying opinion is necessary prior to adjudication.

Regarding the Veteran's claim for automobile or other conveyance and adaptive equipment or adaptive equipment only, the Board finds that a VA examination is necessary.  First, the Board finds the issue to be inexplicably intertwined with the Veteran's above claim of service connection. Therefore, remand is necessary pending adjudication.  See Ephraim v. Brown, 5 Vet. App. 549, 550 (1993) (inextricably intertwined claims should be remanded together). 

Furthermore, the record indicates that the Veteran requires a wheelchair for ambulation.  However, additional information is necessary to determine if the Veteran's symptoms meet the criteria for automobile or other conveyance and adaptive equipment or adaptive equipment only under 38 C.F.R. § 3.808.   Therefore, remand is necessary for another VA examination and opinions on the issues remaining on appeal. 

Accordingly, the case is REMANDED for the following action:

Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2017).

1. Obtain any outstanding, relevant treatment records and associate the records with the VBMS file.  All attempts to obtain records must be documented in the claims folder.  The Veteran's assistance in identifying and obtaining records should be requested as needed.

2. Schedule a VA examination of his claimed bilateral peripheral neuropathies and with a qualified medical professional.  The electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail.  

The examiner must set forth the neurological impairments and symptoms for which the Veteran is presently in receipt of service connection.

(a) For any additional impairments or symptoms that are not included in his service-connected disorders, the examiner must opine as to whether those impairments or symptoms are caused or aggravated by the Veteran's service-connected disorders. 

(b) Finally, the examiner must opine as to whether the Veteran's service-connected disorders cause the loss or permanent loss of use of one or both feet; the loss of permanent loss of use of one or both hands; and ankylosis of one or both knees or one or both hips. 

All opinions must be supported by a reasoned rationale.  If the examiner is unable to provide an opinion without resorting to speculation, he/she should so state and provide an explanation as to the reason(s) therefor.

3. Thereafter, readjudicate the claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
BISWAJIT CHATTERJEE
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs