Citation Nr: 19124706 Decision Date: 04/02/19 Archive Date: 04/02/19 DOCKET NO. 15-19 603 DATE: April 2, 2019 ORDER New and material evidence having been received, the claim of entitlement to service connection for peripheral neuropathy of the left upper extremity is reopened. New and material evidence having been received, the claim of entitlement to service connection for peripheral neuropathy of the right upper extremity is reopened. New and material evidence having been received, the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is reopened. New and material evidence having been received, the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is reopened. REMANDED Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. FINDINGS OF FACT 1. A June 2012 rating decision denied entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities; no appeal was taken from the determination and new and material evidence was not received within the one-year appeal period. 2. The Veteran petitioned to reopen the claim of entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities in July 2014. 3. Evidence received since the June 2012 rating decision is new and raises a reasonable possibility of substantiating the claims of entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities. CONCLUSIONS OF LAW 1. The June 2012 rating decision is final as it pertains to the claims of entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence having been received since the June 2012 rating decision, the criteria to reopen the claims of entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1965 to December 1967, including active service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge in June 2018. The transcript of that hearing has been associated with the record. New and Material Evidence Standard A final decision cannot be reopened and reconsidered unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of an AOJ’s determination, the Board is under a statutory obligation to conduct a de novo review of a new and material evidence issue. Butler v. Brown, 9 Vet. App. 167, 171 (1996); see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Rowell v. Principi, 4 Vet. App. 9, 15 (1993); see also Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The requirement for the submission of new and material evidence is a jurisdictional prerequisite for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis is neither required nor permitted. Id. at 1384. If new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law is interpreted in favor of enabling reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Evidence is material where it is relevant and probative of the issues at hand and where there is a reasonable possibility that, when viewed in the context of all the evidence, both new and old, it would change the outcome. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial. 38 C.F.R. § 3.156(a). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). For purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade, 24 Vet. App. at 120. The focus is not exclusively on whether the evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 118. Thus, evidence is new and material if, when considered with the evidence of record, it would at least trigger VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. 1. Whether new and material evidence has been received to reopen the claims of entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities. The Veteran seeks to reopen the claims of entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection on a direct-incurrence basis, a veteran must show: “(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). A June 2012 rating decision denied service connection for bilateral peripheral neuropathy of the upper and lower extremities (addressed as separate claims for each extremity) finding that there was no evidence that the conditions began during service or were otherwise related to an event, injury, or disease in service, including Agent Orange exposure. Notice of the determination was issued to the Veteran, but no appeal was taken from that determination and new and material evidence was not received within the one-year appeal period. As such, the June 2012 rating decision became final. 38 U.S.C. § 7105. The Veteran petitioned to reopen the claims in July 2014. The November 2014 rating decision on appeal declined to reopen the claims. The Veteran submitted a timely Notice of Disagreement and was issued a Statement of the Case in April 2015 which declined to reopen the claims on the basis that new and material was not submitted. The Veteran appealed. Based on a review of the record, the Board finds that new and material evidence has been received sufficient to reopen the claims. The evidence received since the June 2012 rating decision includes medical records from Olmsted Medical Center, Stanley Jones & Associates, and the Minneapolis VA Health Care System (“Minneapolis VA HCS”) which includes the Rochester Community Based Outpatient Clinic (“Rochester CBOC”). The medical records from Olmsted Medical Center, Stanley Jones & Associates, the Minneapolis VA HCS and the Rochester CBOC are new, but are immaterial toward reopening the claims because they simply continue to show that that he suffers from bilateral peripheral neuropathy of the upper and lower extremities. Other new evidence includes the Veteran’s testimony during the hearing that his peripheral neuropathy began five years after service (approximately 1972)—although he provided contradicting testimony later in the hearing. Compare Hearing Transcript at 8 (testifying that he sought treatment from Dr. D.R.B. five years after separating from service), with Hearing Transcript at 10 (testifying that he is still being treated by the same Dr. D.R.B.); but see Olmsted Medical Center Records (indicating that the first visit with Dr. D.R.B. was in 2011); see also Dr. D.R.B.: Provider Profile, Olmsted Medical Center (http://www.olmmed.org/find-a-provider/profile/?id=87) (last visited Mar. 1, 2019) (showing Dr. D.R.B. joined the Olmsted Medical Center staff in 2004 and did not graduate medical school until 1978). Nevertheless, this new statement is presumed credible for purposes of determining whether new and material evidence has been submitted to reopen the claims. Justus, 3 Vet. App. at 513. Moreover, it may reduce the gap between the in-service exposure to Agent Orange and his alleged onset of peripheral neuropathy—previously shown to have arisen around 2010. Justus, 3 Vet. App. at 513. Additionally, the Veteran submitted a Disability Benefits Questionnaire (DBQ) and medical opinion from his private physician, Dr. D.R.B. Dr. D.R.B. noted that the Veteran already underwent testing to rule out more common causes of peripheral neuropathy, such as diabetes, B12 deficiency, and Lyme disease, which were all negative. Therefore, he reasoned that the Veteran’s peripheral neuropathy is more likely than not related to the Veteran’s Agent Orange exposure. When considered with the evidence previously of record, the Board finds that the Veteran’s hearing testimony and Dr. D.R.B.’s medical opinion relate to an unestablished element of service connection and raise a reasonable possibility of substantiating the Veteran’s claims. See 38 C.F.R. § 3.156(a). Therefore, the claims are reopened. REASONS FOR REMAND 1. The claims of entitlement to service connection for bilateral peripheral neuropathy of the upper and lower extremities are remanded. The reopened claims are remanded for a VA opinion to address the Veteran’s contention that his bilateral peripheral neuropathy of the upper and lower extremities are related to Agent Orange exposure during service. Service records show that the Veteran served in the Republic of Vietnam. Thus, he has the requisite type of service in the Republic of Vietnam as defined by 38 C.F.R. § 3.307(a)(6)(iii) and is presumed to have been exposed to an herbicide agent during such service in the absence of affirmative evidence to the contrary. The disabilities for which the Veteran seeks service connection, however, are not enumerated in 38 C.F.R. § 3.309(e) (providing only for presumptive service connection of early-onset peripheral neuropathy manifesting within one year after the last date on which the veteran was exposed, but not delayed-onset peripheral neuropathy—i.e., manifesting more than one year after exposure). VA’s Secretary has determined that there is no positive association between exposure to herbicide agents and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (Apr. 11, 2014). But while the Veteran is not entitled to presumptive service connection under 38 C.F.R. § 3.307(a)(6)(iii), he is not precluded from establishing entitlement to service connection on a direct basis under 38 C.F.R. § 3.303. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Whether the requirements of service connection are met is based on analysis of all the evidence of record and an assessment of its credibility and probative weight. See 38 C.F.R. § 3.303(a); Baldwin v. West, 13 Vet. App. 1 (1999). As previously noted, the Veteran submitted a private medical opinion from Dr. D.R.B. in support of his claim. Dr. D.R.B.’s Medical Opinion (dated June 25, 2018, but received July 2, 2018). Although the Board can accept private medical opinions in support of a claim, Dr. D.R.B.’s opinion is not entitled to probative weight as it reflects bias and is not based on an accurate picture of the Veteran’s medical history. See Winsett v. West, 11 Vet. App. 420, 424 (1998) (stating that while the Board is not required to accept the proffered medical opinion supporting a claim, it must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision). Dr. D.R.B.’s opinion indicates that the remainder of the Veteran’s medical history is non-contributory regarding the possible cause of his peripheral neuropathy. However, the Veteran’s medical records show that he sustained four fractured vertebrae in his neck in 1997 after colliding with the driver of a stolen car while serving as a police officer for the City of Rochester, Minnesota. He also has non-service connected osteoarthritis of the cervical spine. His medical history further indicates that he was a rodeo performer. These injuries and/or activities could plausibly be the cause of the Veteran’s peripheral neuropathy and Dr. D.R.B. was intimately aware of some of these details but did not consider or address them in his medical opinion despite expressing concern in his notes that the peripheral neuropathy may be due to the Veteran’s previous neck fractures. See Olmsted Medical Center (Aug. 4, 2011) (indicating that there was a possibility the Veteran’s peripheral neuropathy may be due to the previous neck injury and arthritis). Indeed, Dr. D.R.B.’s notes indicate he suspected that the Veteran’s peripheral neuropathy may have been due to a pinched nerve in his neck, but initially ruled it out because the Veteran did not have symptoms in the arms as well as his hands. Id. (“Usually radiculopathies due to a pinched nerve in the neck I would expect symptoms in the arm as well as the hands, and he does not have that so that does not fit as well.”). In his May 2015 DBQ, however, Dr. D.R.B. wrote that the Veteran did develop neuropathy symptoms in his arms. May 2015 DBQ (noting that the Veteran has neuropathy symptoms in his elbow region as well as his hands). For these reasons, Dr. D.R.B.’s medical opinion is not entitled to probative weight as it reveals bias and is not based on an accurate picture of the Veteran’s medical history. Similarly, the Veteran’s assertion that his peripheral neuropathy began five years after separating from service is not credible or entitled to any probative weight. Whereas newly submitted evidence is generally presumed to be credible for purposes of reopening a claim, Justus, 3 Vet. App. at 513, the Justus presumption does not apply once the claim has been reopened. The Board may consider many factors when assessing the credibility and weight of evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza, 7 Vet. App. at 512. Here, the Veteran’s assertion is not credible due to internal inconsistency and inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In conjunction with his original claim, the Veteran and his wife reported that his neuropathy had its onset around 2010. His medical records corroborate that his symptoms began around that time. See, e.g., Olmsted Medical Center (Aug. 4, 2011) (reporting tingling in his fingers and hands of three to four-week duration); id. (Feb. 20, 2012) (reporting numbness in his hands for one and half years and numbness in feet for six months); id. (Mar. 2, 2012) (complaining of numbness and tingling in hands and feet for past year); id. (Jun. 20, 2012) (reporting that he was diagnosed with peripheral neuropathy of hands and feet one and half years ago); see also May 2015 DBQ (stating that the Veteran’s peripheral neuropathy had its onset around 2012). But during this appeal, the Veteran testified that his peripheral neuropathy began five years after service (approximately 1972) and that he began receiving treatment from Dr. D.R.B. around that time. Compare Hearing Transcript at 8 (testifying that he sought treatment from Dr. D.R.B. five years after separating from service), with Hearing Transcript at 10 (testifying that he is still being treated by the same Dr. D.R.B.); but see Olmsted Medical Center Records (indicating that the first visit with Dr. D.R.B. was in 2011); see also Dr. D.R.B.: Provider Profile, Olmsted Medical Center (http://www.olmmed.org/find-a-provider/profile/?id=87). For these reasons, the Veteran’s assertion is not credible and the opining VA physician is not to consider it when rendering his/her opinion. Despite the above, the Veteran was exposed to Agent Orange and a VA medical opinion has not been obtained to address whether his exposure to Agent Orange during service caused his delayed-onset peripheral neuropathy 40 years later. An opinion should be obtained to help determine the etiology of the Veteran’s peripheral neuropathy. On remand, the opining examiner must consider the Veteran’s medical history and consider the findings of the Institute of Medicine and National Academy of Sciences within the Veterans and Agent Orange reports as to whether there is a relationship between Agent Orange exposure and delayed onset peripheral neuropathy approximately 40 years later. See, e.g., Veterans and Agent Orange: Update 2010 & 2014 Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (finding that the Secretary and Board have constructive, if not actual knowledge of documents prepared at the request of the Secretary pursuant to Congress’ direction); see also Agent Orange Act of 1991, Pub.L. No. 102-4, § 3, 105 Stat. 11 (codified at 38 U.S.C. § 1116) (directing the Secretary to enter into an agreement with the National Academy of Sciences to review and summarize the scientific evidence concerning the association between exposure to a herbicide in service and each disease suspected to be associated with such exposure). The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician (preferably a neurologist) to determine the nature and etiology of the Veteran’s bilateral peripheral neuropathy of the upper and lower extremities. The clinician must opine whether it is at least as likely as not that the Veteran’s bilateral peripheral neuropathy of the upper and lower extremities are related to an in-service injury, event, or disease, including his presumed exposure to Agent Orange. The clinician must review the claims file and consider reports from the National Academy of Sciences (NAS), Institute of Medicine (IOM), titled Veterans and Agent Orange, which have concluded that there is inadequate or insufficient evidence of an association between herbicide exposure and delayed-onset peripheral neuropathy. Rationale must be provided for the opinions proffered. In rendering the requested rationale, the examiner must reconcile his/her findings with the evidence of record showing that: (1) the Veteran sustained four fractured vertebrae in his neck in 1997 after colliding with the driver of a stolen car while serving as a police officer for   the city of Rochester, Minnesota; (2) the Veteran has non-service connected osteoarthritis of the cervical spine; and (3) the Veteran was a rodeo performer. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel