Citation Nr: 20003399 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-07 865 DATE: January 14, 2020 ORDER New and material evidence having been received, the claim for service connection for right upper extremity peripheral neuropathy is reopened. New and material evidence having been received, the claim for service connection for left upper extremity peripheral neuropathy is reopened. New and material evidence having been received, the claim for service connection for right lower extremity peripheral neuropathy is reopened. New and material evidence having been received, the claim for service connection for left lower extremity peripheral neuropathy is reopened. REMANDED Entitlement to service connection for right upper extremity peripheral neuropathy, to include as due to herbicide exposure, is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as due to herbicide exposure, is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, to include as due to herbicide exposure, is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy, to include as due to herbicide exposure, is remanded. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a May 2012 rating decision, the RO denied a claim for service connection for peripheral neuropathy of the right upper, left upper, right lower, and left lower extremities. The Veteran did not appeal that decision or submit new and material evidence within one year of that determination. 2. The evidence received since the May 2012 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claims for service connection. CONCLUSIONS OF LAW 1. The May 2012 rating decision denying service connection for peripheral neuropathy of the bilateral upper and lower extremities is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received since the May 2012 rating decision is new and material as to the claims for service connection for peripheral neuropathy of the right and left upper and lower extremities, and the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to December 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in September 2019. A transcript is of record. The record was held open for 60 days to allow for the submission of additional evidence. The Veteran has submitted additional evidence since the issuance of the March 2017 supplemental statement of the case. However, the automatic waiver provision applies. Law and Analysis In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2018); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). In a May 2012 rating decision, the RO denied claims for service connection for left upper extremity peripheral neuropathy, right upper extremity peripheral neuropathy, left lower extremity peripheral neuropathy, and lower extremity peripheral neuropathy. In particular, the RO acknowledged that the Veteran had been exposed to herbicides during his military service, but found that he did not have a current diagnosis of the disorders. The Veteran was notified of that decision and his appellate rights in June 2012; however, he did not submit notice of disagreement within one year. In general, the rating decisions that are not timely appealed are final. See 38 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence received within one year of the issuance of the decision. Thus, the May 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. The evidence received since the May 2012 rating decision includes post-service treatment records, which document diagnoses of peripheral neuropathy, and lay statements. The Board finds that the evidence is new and material because it relates to unestablished facts necessary to substantiate the claims (a current disability) and could reasonably substantiate the claim were it to be reopened by triggering VA’s duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Thus, the Board finds that this evidence is both new and material, and the claims for service connection are reopened. REASONS FOR REMAND The Veteran has claimed that he has peripheral neuropathy of the upper and lower extremities that are related to herbicide exposure in service. His military personnel records show that he served in the Republic of Vietnam during the Vietnam era, and he is therefore presumed to have been exposed during such service to certain herbicide agents, including Agent Orange. Although early onset peripheral neuropathy is on the list of diseases that VA has associated with herbicide exposure at 38 C.F.R. § 3.309(e), 38 C.F.R. § 3.307(a)(6)(ii) requires that early-onset peripheral neuropathy become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active service. Nevertheless, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See 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). Therefore, the Board finds that a VA medical opinion is needed to determine to nature and etiology of any peripheral neuropathy that may be present. In addition, the claims file contains two letters written by a private physician stating that the Veteran is unable to hold a stable job due to his posttraumatic stress disorder (PTSD). The Veteran is service-connected for PTSD, as well as tinnitus, hearing loss, and erectile dysfunction, and his combined evaluation is 70 percent. However, the private opinions do not provide any rationale for their conclusions. Therefore, the Board also finds that a VA examination and medical opinion are needed to determine the functional impact resulting from the Veteran’s service-connected disabilities. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers not already of record who have provided treatment for peripheral neuropathy and his service-connected disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also request any outstanding VA treatment records. 2. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any peripheral neuropathy of the bilateral upper and lower extremities that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including EMG studies. The examiner is requested to review all pertinent records associated with the claims file, including service treatment records, post-service medical records, September 2019 hearing transcript, lay statements, and the Veteran’s own assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should also note that the Veteran served in the Republic of Vietnam during the Vietnam Era. Thus, he is presumed to have been exposed to herbicide agents during service. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has peripheral neuropathy of any of the upper and lower extremities that is causally or etiologically related to his military service, including exposure to herbicide agents therein (notwithstanding the fact that it may not be a presumed association). (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The AOJ should request that the Veteran complete and return an updated VA Form 21-8940. 4. The AOJ should attempt to obtain an updated VA Form 21-4192 from any current or past employers. If an updated authorization is needed, it should be requested. 5. After completing the foregoing development, the AOJ should schedule the Veteran for a VA examination to ascertain the combined effects of his service-connected disabilities and any resulting impairment. The examiner should address how the Veteran’s service-connected disabilities alone result in functional impairment and comment on the Veteran’s ability to function in an occupational environment. If possible, he or she should also indicate if there is any form of employment that the Veteran could perform, and if so, what type. A written copy of the report should be associated with the electronic claims folder. 6. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Kuczynski 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.