Citation Nr: 20002670 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 14-13 034 DATE: January 13, 2020 ORDER An effective date of July 2, 2004, for the grant of service connection for left lower extremity peripheral neuropathy is granted. FINDINGS OF FACT 1. The Veteran did not appeal or submit new and material evidence within one year of the January 1973, October 1994, and June 1998 decisions. 2. The Veteran filed a claim for left thigh pinched nerve on July 2, 2004, the Regional Office (RO) denied the claim in a July 2005 rating decision, and new and material evidence was associated with the claims file within a year of that decision. CONCLUSION OF LAW The criteria for an effective date of July 2, 2004, for the grant of service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.156, 3.159, 3.114, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1970 to September 1972. 1. An effective date prior to June 21, 2006, for the grant of service connection for left lower extremity peripheral neuropathy The Veteran contends he should have been granted service connection for left lower extremity peripheral neuropathy prior to June 21, 2006. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Prior to March 24, 2015, a “claim” was defined broadly to include 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). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant’s behalf, that indicated intent to apply for a benefit, and identified that benefit, could be considered an informal claim. 38 C.F.R. § 3.155(a). A decision of an agency of original jurisdiction is final unless an appeal is filed by a claimant or claimant’s representative within one year of the date of mailing of the decision. 38 C.F.R. §§ 3.104, 19.52, 20.1103. However, where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. 38 C.F.R. § 3.156(a). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). After reviewing the record, the Board finds the criteria for an effective date of July 2, 2004, but not prior, for the grant of service connection for left lower extremity peripheral neuropathy have been met. See 38 C.F.R. §§ 3.104, 3.156, 3.400. The Regional Office (RO) issued decisions in January 1973, October 1994, and June 1998 denying the Veteran’s claim of service connection for left thigh pinched nerve and back disability and reopening. The Veteran did not appeal, and new and material evidence was not received within one year of the decisions. Therefore, the decisions became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.202. Without an assertion of clear and unmistakable error in those decisions, the Board agrees with the finding of the Court of Appeals for Veterans Claims in the March 2019 Memorandum Decision that there is “no basis on which it could consider an effective date earlier than June 1998, the last of the final decisions on this matter.” On July 2, 2004, the Veteran filed to reopen his claim of service connection for left thigh pinched nerve. The RO denied reopening the claim in a July 2005 decision. Although he did not appeal that decision, the record shows receipt of new evidence within a year of the July 2005 decision. This evidence includes a September 2002 mental health evaluation that also diagnosed peripheral neuropathy and May and June 2006 VA treatment records noting symptoms and test results consistent with neuropathy. The Board finds this evidence had not been previously considered by agency decision makers, and, especially when considered with previous evidence of record including in-service notations of possible peripheral neuropathy, the new evidence related to an unestablished fact necessary to substantiate the claim: disability with a known association to herbicide exposure (i.e., early-onset peripheral neuropathy). Given the low threshold for analyzing new and material evidence, the Board finds this evidence satisfied the requirements. See Shade, 24 Vet. App. at 118. As such, the July 2, 2004 claim remained pending through the subsequent decision and appeal that ultimately led to the grant of service connection. See 38 C.F.R. § 3.156(b). Thus, July 2, 2004 is the date of claim and the appropriate effective date for the grant of service connection for left lower extremity neuropathy. As discussed above, the January 1973, October 1994, and June 1998 decisions had become final. The record contains no communication between the June 1998 decision and July 2004 claim that could be construed as a formal or informal claim to reopen the issue of service connection for left leg nerve disability. The Veteran does not contend that he filed a claim during that time frame. The appropriate effective date for the grant of service connection for left lower extremity neuropathy is July 2, 2004. See 38 C.F.R. § 3.400. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong, 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.