Citation Nr: 20021875 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 18-34 633 DATE: March 27, 2020 ORDER Evidence received since the August 2013 rating decision that denied service connection for peripheral neuropathy of the bilateral upper extremities, which was the last final denial with respect to this issue, is new and material; the claim is reopened. Evidence received since the August 2013 rating decision that denied service connection for peripheral neuropathy of the bilateral lower extremities, which was the last final denial with respect to this issue, is new and material; the claim is reopened. Evidence received since the August 2013 rating decision that denied service connection for posttraumatic stress disorder (PTSD), which was the last final denial with respect to this issue, is new and material; the claim is reopened. Entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for bilateral peripheral neuropathy, upper extremities is remanded. Entitlement to service connection for bilateral peripheral neuropathy, lower extremities is remanded. FINDINGS OF FACT 1. Evidence associated with the claims file since August 2013 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 2. Evidence associated with the claims file since August 2013 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. 3. Evidence associated with the claims file since August 2013 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. 4. The Veteran’s current psychiatric disorder was caused by his active service in the Republic of Vietnam. CONCLUSIONS OF LAW 1. Evidence received since the August 2013 rating decision that denied service connection for peripheral neuropathy of the bilateral upper extremities, which was the last final denial with respect to this issue, is new and material. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 19.20, 19.52, 20.1103 (2019). 2. Evidence received since the August 2013 rating decision that denied service connection for peripheral neuropathy of the bilateral lower extremities, which was the last final denial with respect to this issue, is new and material. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 19.20, 19.52, 20.1103 (2019). 3. Evidence received since the August 2013 rating decision that denied service connection for PTSD, which was the last final denial with respect to this issue, is new and material. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 19.20, 19.52, 20.1103 (2019). 4. The criteria for service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from June 1970 to April 1973, to include service in the Republic of Vietnam. In December 2019, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Medical evidence of record contains diagnoses of major depression as well as PTSD. Thus, while the Veteran specified that he was seeking service connection for PTSD, the claim has been broadened to include other psychiatric disabilities and is re-characterized accordingly. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. New and Material Evidence The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b) (2012); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108 (2012). 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 (a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). 1. New and material evidence to reopen claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities. In August 2013, the RO denied the Veteran’s claims for service connection for peripheral neuropathy of the bilateral upper and lower extremities on the basis that the medical evidence of record did not establish that his peripheral neuropathy was incurred during or caused by his active service, or manifested within a year of his last exposure to herbicides in the Republic of Vietnam. The Veteran submitted a Notice of Disagreement (NOD) in September 2013. A Statement of the Case (SOC) continuing the denial of the Veteran’s claims for service connection was issued in June 2015. The Veteran submitted a Form 9, Appeal to the Board of Veterans’ Appeals that was received on August 24, 2015 which was more than 60 days after the SOC and more than one year after the August 2013 rating decision. The Form 9 was untimely. He was informed of this in a November 2015 letter. Accordingly, the August 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 19.20, 19.52, 20.1103. The Veteran has now submitted further medical evidence that indicates that his peripheral neuropathy may have onset within one year of his last exposure to herbicides. Specifically, the Veteran has submitted credible testimony before the undersigned VLJ stating that tingling and numbness in the bilateral upper and lower extremities began immediately following his return from Vietnam. Presuming the credibility of this evidence, this evidence is new and material. New evidence raises a reasonable possibility of substantiating the claim if when considered with the evidence already of record, it would trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). As discussed below, an addendum opinion is needed to address the Veteran’s peripheral neuropathy of the upper and lower extremities. 2. New and material evidence to reopen claims for service connection for an acquired psychiatric disorder, to include PTSD. In August 2013, the RO denied the Veteran’s claims for service connection for PTSD on the basis that the Veteran did not have a current diagnosis of PTSD. The Veteran submitted a NOD in September 2013. A SOC continuing denial of the Veteran’s claim for service connection was issued in June 2015. The Veteran did not file a timely Form 9, Appeal to the Board of Veterans’ Appeals. Accordingly, the August 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 19.20, 19.52, 20.1103. The Veteran has now submitted additional medical evidence of a current diagnosis of PTSD. Specifically, the Veteran has submitted a private medical analysis and opinion noting a diagnosis of PTSD with depression. Presuming the credibility of this evidence, this evidence is new and material. Reopening of the Veteran’s claim for service connection for PTSD based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110, 121 (2011) (holding that the phrase “raises a reasonable possibility of substantiating the claim” in applicable regulation as “enabling rather than precluding reopening”). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for an acquired psychiatric disorder is granted. The Veteran contends that his current PTSD was incurred during or caused by his active duty service in the Republic of Vietnam. Establishing service connection for PTSD requires: (1) medical evidence diagnosing posttraumatic stress disorder in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Veteran’s medical treatment records notes a current diagnosis of PTSD. A December 2019 psychological evaluation and opinion authored by a private psychologist notes the Veteran has a diagnosis of PTSD and major depressive disorder. The psychologist specifically notes the Veteran’s fear of hostile military activity while stationed in the Republic of Vietnam. The Veteran’s military personnel records note service in the Republic of Vietnam. Further, in a December 2019 hearing, the Veteran testified about experiencing incoming mortar attacks while stationed in the Republic of Vietnam. The Board finds the Veteran’s testimony to be competent and credible evidence of an in-service stressor. Accordingly, the Board finds the Veteran has presented medical evidence of a diagnosis of PTSD and evidence of an in-service stressor. At issue in the Veteran’s claim, is if the Veteran’s in-service stressor caused his current PTSD. The December 2019 psychological evaluation and opinion stated: [The Veteran] clearly evidences PTSD…[The Veteran’s] PTSD is clearly related to his experiences in Vietnam. [The Veteran] has no other trauma history, which could account for the development of his symptoms. [The Veteran] clearly displays the full constellation of PTSD symptoms required for diagnosis. The Board finds the private examiner’s opinion and rationale to be thorough and well-considered. The examiner’s opinion is highly probative evidence in favor of the Veteran’s claim for service connection. Based on the medical evidence discussed above, the Board finds that entitlement to service connection for PTSD is warranted. See 38 C.F.R. §§ 3.303, 3.304. REASONS FOR REMAND At issue in the Veteran’s claims for service connection is whether the Veteran’s peripheral neuropathy on-set within 12 months of his last exposure to herbicides in June 1972. At his December 2019 hearing, the Veteran testified that he began experiencing tingling and numbness in his bilateral upper and lower extremities when he got back from Vietnam and during his first job after his completion of active service. The Veteran testified that his symptoms began approximately during the latter half of 1973. Additionally, in a September 2013 Notice of Disagreement, the Veteran stated that he had experienced bilateral peripheral neuropathy of the upper and lower extremities since returning from Vietnam. The Veteran also stated his peripheral neuropathy of the upper and lower extremities has been present since his return from Vietnam in a May 2012 Statement in Support of Claim. An August 2012 VA peripheral nerves conditions DBQ states that the Veteran reported the onset of his peripheral neuropathy as occurring in 1995, and that the examiner attributed it to alcohol abuse. However, the Veteran had previously stated in his May 2012 Statement in Support of Claim that his peripheral neuropathy onset following his Vietnam service. The Veteran also explained in his September 2013 NOD that his peripheral neuropathy onset immediately following his Vietnam service, and that at the August 2012 examination he incorrectly stated 1995 because that is when the peripheral neuropathy became so intense that he could barely work. The Board finds the Veteran’s explanation to be credible. An addendum opinion is needed to address the Veteran’s lay statements. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The matters are REMANDED for the following action: 1. Provide the Veteran’s claims file to a suitable clinician so a supplemental opinion may be provided for the Veteran’s peripheral neuropathy of the upper and lower extremities. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s May 2012 statement that he experienced symptoms since his return from Vietnam. b. The September 2013 Notice of Disagreement where the Veteran reported that his peripheral neuropathy began immediately following his return from Vietnam, but he mistakenly told the August 2012 examiner that it began in 1995 because that when it became so intense that he could not work. c. October 2011, March 2012, September 2012, April 2013, and May 2014 VA treatment records noting alcoholic neuropathy. d. The Veteran’s December 2019 hearing testimony where he reported experiencing tingling and numbness in his extremities when he got back from Vietnam and during his first job after completing active service. The clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral neuropathy began within one year of his leaving Vietnam. If it did not begin within one year of leaving Vietnam during active service, the clinician must determine whether it is directly related to his exposure to herbicides. The clinician is advised that if the Veteran does not have early-onset peripheral neuropathy that manifested within one year of leaving Vietnam, it is not sufficient to conclude that his peripheral neuropathy is not on the list of conditions presumptively associated with exposure to herbicide agents. The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such conclusion. 2. Readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.