Citation Nr: 19151663 Decision Date: 07/02/19 Archive Date: 07/02/19 DOCKET NO. 15-26 208A DATE: July 2, 2019 ORDER New and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. Entitlement to an effective date of September 13, 2004 for the grant of service connection for tinnitus is granted. Entitlement to an effective date of September 13, 2004 for the grant of service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as due to herbicide exposure, is remanded.   FINDINGS OF FACT 1. An October 2011 rating decision denied entitlement to service connection for peripheral neuropathy of the lower extremities. The Veteran did not appeal, and did not submit new and material evidence within one year. 2. The evidence associated with the file after the October 2011 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for neuropathy of the lower extremities. 3. The Veteran submitted an informal claim for service connected benefits for bilateral hearing loss and tinnitus that was received by VA on September 13, 2004. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for bilateral peripheral neuropathy. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for entitlement to an effective date of September 13, 2004 for the grant of service connection for tinnitus have been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(q)(2) (2018). 3. The criteria for entitlement to an effective date of September 13, 2004 for the grant of service connection for bilateral hearing loss have been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(q)(2) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Army from June 1967 until January 1969. His medals include a Vietnam Campaign Medal and a Vietnam Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board finds that all requirements for hearings have been met. 38 C.F.R. § 3.103(c)(2) (2018); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, 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 - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Whether new and material evidence has been received sufficient to reopen a previously denied claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities An October 2011 rating decision denied entitlement to service connection for peripheral neuropathy of the lower extremities on the grounds that unspecified idiopathic peripheral neuropathy did not occur in service, and was not otherwise caused by the Veteran’s period of service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the October 2011 rating decision includes the Veteran’s service treatment records (STRs), VA treatment records, and an October 2011 VA examination report. The STRs do not discus treatment for a neurologic condition of the lower extremities, and do not include any notation of neuropathy of the lower extremities. August 2011 VA treatment records document that the Veteran had symptoms of numbness and tingling in the balls of the feet and toes that was ongoing for at least 15 years. Electrodiagnostic studies were negative for neuropathy, but there was objective and subjective evidence indicating small fiber neuropathy that would not be detectable with electrodiagnostic studies. The October 2011 VA examiner diagnosed unspecified idiopathic peripheral neuropathy and Morton’s neuroma, and opined that the Veteran’s peripheral neuropathy was likely due to the not yet diagnosed condition of Morton’s neuroma. The examiner then opined that Morton’s neuroma was also not due to service given the number of asymptomatic years after separation from service; rather, the Veteran’s flat feet and narrow toe box were the likely cause of his neuropathy. Evidence submitted after the October 2011 rating decision includes additional VA treatment records, an April 2017 VA examination report, the Veteran’s October 2018 hearing testimony, and June 2019 private treatment records. March 2017 and January 2018 VA treatment notes document peripheral neuropathy possibly caused by Agent Orange exposure, and idiopathic peripheral neuropathy likely related to Agent Orange. The April 2017 VA examiner provided a negative etiology opinion for diagnosed idiopathic peripheral neuropathy, but also stated that the Veteran’s flat feet alone were not the cause of his neuropathy. At the October 2018 hearing, the Veteran reported a long history of strange sensations in his feet, but he thought it was related to his socks and shoe insoles rather than a medical problem with his feet. He referred to a 1985 treatment record documenting burning of the feet, and also testified that his symptoms predated 1985. In a June 2019 private treatment record, an examiner diagnosed polyneuropathy. The Board finds that new and material evidence has been presented. The evidence, including VA treatment records, the examination report, and the Veteran’s lay testimony, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of chronicity of neuropathic symptoms of the bilateral lower extremities, and physician notes attributing the Veteran’s neuropathy to Agent Orange exposure. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance to obtain an adequate medical opinion, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claims are reopened. As the positive opinion does not provide a supporting explanation, it is insufficient upon which to grant service connection and further development is required.   Effective Date Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Where a claim is granted after the submission of new and material evidence, the effective date is the later of the date of receipt of the new claim or the date entitlement arose. 38 C.F.R. § 3.400(q)(2). Prior to March 24, 2015, a claim was “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Here, the Veteran’s claim was filed prior to March 2015, therefore VA will accept an informal claim for benefits. With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. 2. – 3. Entitlement to an effective date prior to September 23, 2008 for the grant of service connection for tinnitus and bilateral hearing loss. Historically, VA received the Veteran’s initial claim for service connection for bilateral hearing loss and tinnitus on August 8, 1999. In December 1999, the Veteran submitted additional testimony about his bilateral hearing loss and tinnitus symptoms, and his in-service noise exposure. A November 1999 rating decision denied the claims, and the Veteran was notified of that decision on December 21, 1999; after he had submitted his December 1999 statement. The December 1999 statement from the Veteran cannot be construed as a notice of disagreement because it was received prior to the Veteran being notified of the rating decision. Thus, VA did not have a duty to provide a statement of the case at that time. Thereafter, a May 2000 rating decision continued the denials of service connection, and addressed the December 1999 statement from the Veteran. In January 2001, the Veteran wrote that he had seen a hearing specialist who stated that the Veteran’s hearing loss and tinnitus were related to his period of service. His claims were then readjudicated on the merits in a September 2001 rating decision, and were again denied. The Veteran did not file a notice of disagreement to the September 2001 rating decision, and no new or material evidence was associated with the claims file within a year of that decision. The September 2001 rating decision is final. Next, in September 2003 the Veteran filed a claim to reopen the previously denied claims of entitlement to service connection for hearing loss and tinnitus. The claims to reopen were then denied in a January 2004 rating decision on the basis that no new or material evidence had been received. On September 13, 2004, the Veteran’s representative submitted private audiology records that had already been considered in the January 2004 decision. In accompanying correspondence, the representative requested that VA take appropriate action based on the submissions. No action was taken by VA in response to the September 13, 2004 submissions. Next, VA received the Veteran’s claim for service connection for bilateral hearing loss and tinnitus on September 23, 2008. In a January 2009 VA examination report, the examiner provided a negative nexus opinion. A January 2009 rating decision denied service connection again. The Veteran appealed. In a September 2012 decision, the Board reopened the claims and remanded for development. In an October 2012 examination report, the examiner provided positive nexus opinions. In a July 2013 decision, the Board then granted service connection. In a July 2013 rating decision, the RO granted service connection, effective September 23, 2008. The Veteran appealed that effective date. The Board finds that the date of claim is September 13,2004. Resolving any reasonable doubt in the Veteran’s favor, the September 13, 2004 submissions are informal claims for service connection for hearing loss and tinnitus. In written correspondence the representative specifically requested that VA take action on the submissions, thus indicating an intent to apply for benefits for both conditions. Therefore, the September 13, 2004 claim is the proper date of claim in this case. The Board finds that the date of entitlement was October 2012, the date of the VA examination report that provided positive nexus opinions. Even if, however, the date of entitlement was prior to September 2004, the date of claim is later in time. And as the proper effective date is the later of the date of the claim or the date entitlement arose, the 2004 date is most beneficial to the Veteran. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Board notes that the September 2004 submissions did not constitute a notice of disagreement to the January 2004 rating decision, nor did they include new or material evidence. Accordingly, the January 2004 rating decision was final and the Veteran needed to file a new claim to reopen. As a result, there are no grounds upon which to grant an effective date prior to the January 2004 rating decision. Thus, entitlement to an effective date of September 13, 2004, but no earlier, for the grants of service connection for bilateral hearing loss and tinnitus is granted. REASONS FOR REMAND 4. Entitlement to service connection for neuropathy of the bilateral lower extremities, to include as due to herbicide exposure is remanded. This issue is remanded to secure an adequate VA examination and opinion, and to undertake necessary efforts to obtain outstanding and relevant records. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Also, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). An October 2011 VA examiner diagnosed idiopathic peripheral neuropathy due Morton’s neuroma. The examiner provided negative nexus opinions. The examiner discussed the number of asymptomatic years between military service and the development of neuropathy in support of their conclusion that neuropathy was not due to service, and instead was due to the Veteran’s flat feet and narrow toe box. The 2011 examiner did not fully address STRs that are relevant based on the Veteran’s lay testimony and the April 2017 VA examination report. The Veteran’s pre-induction November 1966 report of medical examination documents normal clinical evaluation of the feet, and no foot defect was noted. The Veteran noted foot trouble on his report of medical history in September 1967, which the examiner identified as flat feet. The Veteran noted foot trouble again at separation. The STRs indicate that a bilateral foot condition may have had its onset during the Veteran’s period of service, and the April 2017 VA examiner indicated that Morton’s neuroma was not solely due to diagnosed flat feet. The Veteran has testified that he experienced chronic symptoms of bilateral foot discomfort he attributed to his socks or shoe inserts. Symptoms of Morton’s neuroma may include a feeling like you are standing on a fold in your sock. See MAYO CLINIC, Morton’s Neuroma, https://www.mayoclinic.org/diseases-conditions/mortons-neuroma/symptoms-causes/syc-20351935 (last visited June 6, 2019). Overall, there is medical evidence and lay testimony indicating chronic foot symptoms that may be related to Morton’s neuropathy, which may in turn be directly or presumptively related to the Veteran’s period of service. Remand is necessary to obtain a medical opinion that fully addresses all relevant evidence and theories of entitlement. Further, in January 2018 a VA treatment provider indicated that the Veteran’s lower extremity neuropathy is directly related to Agent Orange exposure, and there is not an opinion on whether idiopathic neuropathy or Morton’s neuroma were directly related to that exposure. Where the evidence does not warrant presumptive service connection, a Veteran is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041 (Fed. Cir. 1994). The January 2018 VA physician did not provide a rationale for their conclusion, so service-connection cannot be granted on that opinion alone. On remand, VA should also obtain an opinion regarding whether idiopathic peripheral neuropathy or Morton’s neuroma are directly related to herbicide exposure. Last, at the October 2018 hearing, the Veteran’s representative referred to a 1985 medical questionnaire on which the Veteran reported that his feet burned, and stated that she was submitting that evidence with a waiver of RO consideration. There is not a 1985 questionnaire currently of record, and VA should undertake efforts to locate that record, or obtain that record through other means.   The matter is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Undertake all necessary efforts to obtain the 1985 Agent Orange examination and questionnaire mentioned by the Veteran and his representative at the October 2018 hearing, that was purportedly submitted to VA on the day of the hearing with a verbal waiver of RO consideration. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his neuropathy of the bilateral lower extremities. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided.   (a.) Clarify all diagnosed neuropathic conditions of the lower extremities. (b.) For each diagnosed neuropathic condition, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active military service. (c.) For each diagnosed neuropathic condition, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder is etiologically related to herbicide exposure, despite not being listed as a disease presumptively related to such exposure. (d.) For each diagnosed neuropathic condition, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder manifested within one year of separation from service. (e.) The examiner is requested to address 1) the STRs documenting normal clinical findings of the feet in 1966, but abnormalities and complaints from 1967 through separation; 2) the Veteran’s assertions that for a long time, including prior to 1985, he had symptoms of feeling like his sock was bunched or that he had insole problems; 3) VA treatment records from March 2017 and January 2018 attributing the Veteran’s lower extremity neuropathy to Agent Orange; and 4) the conflicting opinions of the October 2011 and April 2017 VA examiners regarding the etiology of the diagnosed Morton’s neuroma. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.