Citation Nr: 20048331 Decision Date: 07/20/20 Archive Date: 07/20/20 DOCKET NO. 18-16 549 DATE: July 20, 2020 ORDER Entitlement to service connection for peripheral neuropathy right upper extremity is granted. Entitlement to service connection for peripheral neuropathy left upper extremity is granted. Entitlement to service connection for peripheral neuropathy right lower extremity is granted. Entitlement to service connection for peripheral neuropathy left lower extremity is granted. New and material evidence having been submitted, a claim of entitlement to service connection for hypertension is reopened. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, his bilateral upper and lower extremity peripheral neuropathy is the result of his in-service herbicide agent exposure. 2. The unappealed August 2009 rating decision denied service connection for hypertension. The evidence received since the August 2009 rating decision relates to an unestablished fact necessary to substantiate the underlying claim of service connection for hypertension. CONCLUSIONS OF LAW 1. The criteria for service connection for peripheral neuropathy right upper extremity have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for peripheral neuropathy left upper extremity have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for peripheral neuropathy right lower extremity have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for peripheral neuropathy left lower extremity have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. New and material evidence sufficient to reopen the previously denied claim of service connection for hypertension has been received. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a), 3.159, 3.304, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to September 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned for a Board hearing in April 2020. Service Connection 1. Entitlement to service connection for peripheral neuropathy right upper extremity 2. Entitlement to service connection for peripheral neuropathy left upper extremity 3. Entitlement to service connection for peripheral neuropathy right lower extremity 4. Entitlement to service connection for peripheral neuropathy left lower extremity Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, service connection may be granted for specific disabilities associated with exposure to herbicide agents, including early-onset peripheral neuropathy. 38 C.F.R. § 3.309 (e). These disabilities will be considered to have been incurred in or aggravated by service despite any lack of evidence of such disease during service. 38 C.F.R. § 3.307 (a). This presumption applies to veterans who served in the Republic of Vietnam during January 9, 1962 to May 7, 1975, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). While early-onset peripheral neuropathy is included among the list of diseases VA associates with herbicide agent exposure, 38 C.F.R. § 3.307 (a)(6)(ii) requires that early-onset peripheral neuropathy manifest itself to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active service. The Veteran contends that he developed peripheral neuropathy as a result of herbicide agent exposure during active service. The Board notes that the Veteran’s DD 214 reflects service in the Republic of Vietnam between December 1967 and September 1969, thus, he is legally presumed to have been exposed to herbicide agents during his military service. There is no dispute that the Veteran has a current diagnosis of peripheral neuropathy, as evidenced by his post-service VA and private treatment records, as well as his February 2018 VA examination. The dispositive issue is whether this disability began during service or within one year thereafter or is otherwise related thereto. Review of the evidence of record does not reflect that the Veteran’s peripheral neuropathy manifested itself during service, but there is evidence that it manifested within one year after his service in the Republic of Vietnam ended. The Veteran’s service treatment records (STRs) are silent for complaints of, symptoms related to, or a diagnosis of and treatment for peripheral neuropathy. Further, post-service private treatment records do not show a diagnosis of and treatment for peripheral neuropathy until approximately 2010. Here, there is no evidence of early-onset peripheral neuropathy within one year following service in the Republic of Vietnam. As such, presumptive service connection for peripheral neuropathy is not warranted. The unavailability of presumptive service connection for a disability based on herbicide agent exposure, however, does not preclude a veteran from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). In lay statements and during the April 2020 Board hearing, the Veteran explained that shortly after coming home in 1969, he noticed numbness in his toes and feet. He had bloodwork done to check for diabetes and circulation problems, but all the tests came back negative. In April 2015, the Veteran submitted a private medical opinion where the examiner explained that he reviewed all of the Veteran’s medical records and related tests and that he finds no other probable or relevant cause for his peripheral neuropathy. The examine opined that it was more likely than not the cause of his moderate peripheral neuropathy was the result of his exposure to Agent Orange herbicide while serving in Vietnam. In March 2018, the Veteran submitted another private medical opinion where the examiner reported that he reviewed all of the Veteran’s medical records and related tests. The examiner further opined that it was more likely than not that the Veteran’s severe peripheral neuropathy was a direct result of his exposure to Agent Orange herbicide. The examiner furthered that in his opinion the Veteran was a minimum of ten percent disabled following his service in Vietnam since today he is a maximum of 30 percent disabled in his feet, legs, and hands. In April 2020, the Veteran submitted a statement by his wife where she explained that she knew the Veteran before and after his time in Vietnam and that he had already started experiencing unexplainable tingling and pain in his feet and toes. During the April 2020 Board hearing the Veteran testified that he felt tingling in his toes shortly after he came home in September 1969. He did not think much about it since he thought he would just tough it out. His first real problem occurred in November 1969 where when he went hunting with his friends he had to stop during the hunt and take his boots off and massage his feet to get them back to normal. He explained that it was not a cold day and there was no snow, but his feet still felt weird. He further reported that his symptoms manifested first with tingling in the toes, which later spread to the feet which caused him to have balance issues. He reported that his symptoms were intermittent from 1969 to the mid-1970s and then it became more regular in the 1980s. Once it became steady, he had balance issues and would trip and fall down many times. He also started experiencing problems with his hands where it was difficult for him to button a shirt. The Veteran also noticed an absence of hair on his legs and discoloration where it was blotchy when he first started feeling symptoms of peripheral neuropathy. After consideration of the entire record and the relevant law, the Board finds that service connection for the Veteran’s peripheral neuropathy for bilateral upper and lower extremities is warranted. Here, the April 2015 and March 2018 private medical opinions provided a positive nexus, linking the Veteran’s current diagnosis of peripheral neuropathy to his herbicide agent exposure during service. Moreover, the March 2018 opinion even opined that the Veteran’s peripheral neuropathy had manifested to at least a ten percent within a year since the Veteran’s service in Vietnam. The Veteran and his wife also submitted credible statements regarding the onset of symptoms. The Board finds the medical opinions and the statements to be competent, credible, and persuasive, as it is based on a review of the Veteran’s entire claims file and is supported by an adequate rationale which supports a finding that the Veteran’s delayed onset of peripheral neuropathy is related to his in-service herbicide agent exposure. Therefore, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for peripheral neuropathy for bilateral upper and lower extremities is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. 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; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. 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. 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. 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. The August 2009 rating decision by the RO denied service connection for hypertension, finding that the Veteran’s hypertension did not occur in or was aggravated by his military service. It also found that the Veteran could not be service connected for hypertension secondary to diabetes since he is not service connected for diabetes. The Veteran did not submit a notice of disagreement for the rating decision and thus it became final based on the record then of record. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. Then, in September 2013, the Veteran submitted a claim to reopen the issue of service connection for hypertension. There was no new evidence before September 2014. The RO found that new and material evidence was not submitted and reasoned that while the Veteran submitted new evidence, they were not material and did not raise a reasonable possibility of substantiating a claim. The Board disagrees and finds that the Veteran has submitted new and material evidence that raises a reasonable possibility of substantiating the claim. At the time of the August 2009 rating decision, the evidence of record included service treatment records (STRs), VA treatment records, and private treatment records that indicated that there was no link between the Veteran’s hypertension and his military service. Evidence submitted with and since the claim to reopen the service connection claim in September 2013 includes disability benefits questionnaires (DBQs) filled out by a private examiner, VA treatment records, private treatment records, and hearing testimony. The Board finds that new and material evidence has been presented for the issue of hypertension. The evidence since the claim to reopen is new because they were not previously identified and/or submitted to VA. Specifically, the Veteran’s hearing testimony and the private medical opinion provides evidence of a nexus between the current disability and military service. The evidence is material because it relates to unestablished facts necessary to substantiate the claims. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the last final decision. See 38 C.F.R. § 3.156 (a). Moreover, when considering the new evidence in conjunction with the evidence already of record, 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 claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. A review of the record reveals that the claim for service connection for hypertension must be remanded prior to appellate consideration. The Veteran alleges that his hypertension originated due to his exposure to Agent Orange herbicide while he was serving in Vietnam. The Veteran submitted DBQs in September 2013 and in April 2020. The Veteran also submitted a private medical opinion in April 2020 opining that the Veteran’s hypertension is at least as likely as not caused by his in-service exposure to Agent Orange while serving in Vietnam. While the examiner cited to a medical article for his basis on his opinion, there is no additional rationale. VA must afford a veteran an examination and/or obtain an opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4). In disability compensation claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Thus, the private examiner’s opinion and the Veteran’s testimony trigger VA’s duty to assist for a VA examination and an opinion to determine whether or not the Veteran’s hypertension is etiologically related to his military service. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. The examiner must opine whether it is at least as likely as not related to in-service herbicide agent exposure. The examiner should consider the April 2020 medical opinion. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.