Citation Nr: 18122167 Decision Date: 07/27/18 Archive Date: 07/27/18 DOCKET NO. 14-30 533 DATE: July 27, 2018 ORDER New and material evidence having been received, the application to reopen the claim of service connection for peripheral neuropathy of the upper and lower extremities is granted. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities is granted. FINDINGS OF FACT 1. In a June 2011 rating decision, the Regional Office (RO) denied service connection for peripheral neuropathy of the bilateral upper and lower extremities. The Veteran did not file a notice of disagreement and no new and material evidence was received within the appeal period. 2. The evidence received since the June 2011 rating decision is not duplicative or cumulative of evidence previously of record and it raises the reasonable possibility of substantiating the Veteran’s claim of service connection for peripheral neuropathy of the upper and lower extremities. 3. The evidence is at least evenly balanced as to whether the Veteran’s peripheral neuropathy is related to his presumed Agent Orange exposure. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for peripheral neuropathy of the upper and lower extremities have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for service connection for peripheral neuropathy of the upper and lower extremities have been met. 38 U.S.C. §§ 1110, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty military service from July 1965 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which continued its previous denial of service connection for peripheral neuropathy of the bilateral upper and lower extremities. 1. Whether new and material evidence has been submitted to reopen the claim of service connection for peripheral neuropathy of the upper and lower extremities Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). 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. Id. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of 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, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the present case, the claim of service connection for peripheral neuropathy of the lower and upper extremities was previously denied because the evidence did not reveal that the Veteran’s peripheral neuropathy first manifested to a compensable degree within one year after his last exposure to herbicides. The evidence of record at the time of the June 2011 rating decision consisted of the claim form, service treatment records, DD Form 214, April 2011 VA examination, and an April 2010 VA problem list. The Veteran was notified of this decision and his procedural rights by letter dated in June 2011. He did not appeal this determination and no additional evidence was submitted within a year following this notification letter. As such, the Board finds that the June 2011 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Since the June 2011 rating decision, VA treatment records, statements from the Veteran, and buddy statements have been associated with the claims file. After a review of the evidence, the Board finds that new and material evidence has been received to reopen the claim of service connection for peripheral neuropathy of the upper and lower extremities. The evidence is new, as it was not part of the record at the time of the June 2011 rating decision. It is also material as it relates to an unestablished fact necessary to substantiate the claim. The newly added evidence suggests that the Veteran’s peripheral neuropathy symptoms may have commenced prior to his diagnosis in 2008. Specifically, the Veteran indicated in an August 2014 letter that his neuropathy may have manifested to a degree of 10 percent while he was still in Vietnam. Furthermore, his VA treatment records dated in February 2002 noted his complaints of pain in both his hands and feet. Accordingly, the evidence is new and material and the claim of service connection for peripheral neuropathy of the upper and lower extremities is reopened. 2. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities is remanded. Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain diseases associated with exposure to herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue, including early onset peripheral neuropathy. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Veteran filed a claim of service connection for peripheral neuropathy of the upper and lower extremities and indicated it was incurred as a result of his Agent Orange exposure. The Veteran served in Vietnam from January 1966 to January 1967. Thus, exposure to Agent Orange is presumed. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, the Veteran has complained of pain, weakness, numbness, and tremors in his upper and lower extremities and has been assessed with peripheral neuropathy throughout the rating period on appeal. More specifically, a VA examination was performed in April 2011, at which time the Veteran was assessed with peripheral neuropathy. The examiner concluded that it was at least as likely as not that the Veteran’s peripheral neuropathy was caused by his military service, given that acute and subacute peripheral neuropathy have been recognized as presumptive service connection for Veterans that served in Vietnam with exposure to Agent Orange. There is no contrary opinion in the evidence of record. The Board notes that during the course of the claim there was a change in the law concerning what type of peripheral neuropathy is presumptively service connected based on in-service Agent Orange exposure. Effective September 6, 2013, the provisions of 38 C.F.R. § 3.309 were revised by replacing the term “acute and subacute” peripheral neuropathy with “early-onset” peripheral neuropathy. VA also removed Note 2 to § 3.309(e), which had required that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset. Under the amendments, peripheral neuropathy still must manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection. 38 C.F.R. § 3.307(a)(6)(ii). The peripheral neuropathy no longer needs to be transient. See 78 Fed. Reg. 54763 (Sept. 6, 2013). The Board need not, however, specifically address the requirements for establishing service connection for peripheral neuropathy on a presumptive basis, because the VA examiner’s opinion, read as a whole and in the context of the evidence of record, reflects that she believed that the fact that certain types of peripheral neuropathy had been recognized as having a statistically significant association with Agent Orange exposure, combined with the particular facts of this case, reflects that it is at least as likely as not that the Veteran’s peripheral neuropathy, however characterized, is directly related to the Veteran’s presumed Agent Orange exposure. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner “did not explicitly lay out the examiner’s journey from the facts to a conclusion,” did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The VA examiner’s opinion, indicating that the Veteran’s peripheral neuropathy is related to his Agent Orange exposure, is therefore entitled to significant probative weight, and there is no contrary medical opinion in the evidence of record. (Continued on the next page)   For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran’s peripheral neuropathy of the upper and lower extremities is related to his presumed Agent Orange exposure in service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for these disabilities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As the Board is granting service connection on a direct basis, it need not consider whether entitlement is warranted on a presumptive basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a Veteran from establishing service connection with proof of actual direct causation). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel