Citation Nr: 20004141 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-06 722 DATE: January 16, 2020 ORDER The request to reopen a previously denied claim for service connection for peripheral neuropathy (PN) of both upper extremities, to include as due to exposure to Agent Orange, is granted. The request to reopen a previously denied claim for service connection for peripheral neuropathy (PN) of both lower extremities, to include as due to exposure to Agent Orange, is granted. REMANDED Service connection for PN of both upper extremities, to include as due to exposure to Agent Orange, is remanded. Service connection for PN of both lower extremities, to include as due to exposure to Agent Orange, is remanded. FINDING OF FACT An unappealed August 2014 rating decision denied service connection for PN of both upper and lower extremities; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claims. CONCLUSION OF LAW The August 2014 rating decision denying the claims for service connection for PN of both upper and lower extremities is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran serviced honorably from November 1969 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. An August 2014 rating decision denied service connection for PN of both upper and lower extremities. The Veteran was advised of the decision via letter in September 2014. The Veteran did not appeal the decision; thus, it is final. The claims may be reopened upon receipt of new and material evidence. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to VA, and material evidence is defined as 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(a). 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence of a disease or injury; and (3) evidence of 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). Because the Veteran is presumed to have been exposed to Agent Orange in Vietnam and is seeking service connection for PN, special regulations are also applicable. Regulations provide that service connection is presumed when a veteran who was exposed to Agent Orange is diagnosed with certain diseases, including early onset PN. 38 C.F.R. § 3.309(e). In the case of early onset PN, service connection is only presumed if the disease is manifested to a degree of 10 percent or more within a year after the veteran was last exposed to Agent Orange. 38 C.F.R. § 3.307(6). Since the September 2014 rating decision, new evidence has been added to the file. The Veteran submitted a February 2016 letter from a VA doctor who, apparently referring to his feet, said it is much more likely than not that the Veteran’s exposure to Agent Orange contributes heavily to his idiopathic peripheral neuropathy. Also, a VA examiner in May 2019, found the Veteran to have mild incomplete paralysis of the radial, median and ulnar nerves. The Board finds the new evidence raises a reasonable possibility of substantiating the claims. The Veteran’s claims for service connection for bilateral upper and lower PN are reopened. REASONS FOR REMAND Service connection for PN of both upper and lower extremities The May 2019 VA examiner’s opinion is inadequate because it applied the incorrect standard and did not include adequate rationale. Instead of considering whether it is “at least as likely as not,” the examiner considered whether it is “more likely than not” that the Veteran’s neuropathies are due to herbicide exposure. Also, after relating various test results and diagnoses, the examiner wrote that “the objective evidence presented above” does not support the contention that the Veteran’s neuropathy is due to herbicide exposure. However, the examiner did not explain why the test results and diagnoses were evidence that the Veteran’s neuropathy is not due to herbicide exposure. The matters are REMANDED for the following action: Schedule an examination to determine the etiology of the Veteran’s peripheral neuropathy (PN) of both upper and lower extremities. After reviewing the claims file, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the PN is due to service, including as due to herbicide exposure. The examiner is advised that herbicide exposure has been conceded. A rationale must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.