Citation Nr: 21002509 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-49 130 DATE: January 13, 2021 ORDER New and material evidence having been submitted, the application to reopen the previously denied claim for entitlement to service connection for axonal sensorimotor peripheral neuropathy of the right lower extremity is granted. New and material evidence having been submitted, the application to reopen the previously denied claim for entitlement to service connection for axonal sensorimotor peripheral neuropathy of the left lower extremity is granted. REMANDED Entitlement to service connection for axonal sensorimotor peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for axonal sensorimotor peripheral neuropathy of the left lower extremity is remanded. FINDINGS OF FACT 1. In an October 2014 rating decision, the RO denied the Veteran’s claims for service connection for axonal sensorimotor peripheral neuropathy of the right and left lower extremities. Although the Veteran was notified of the RO’s decision and his appellate rights in an October 2014 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of issuance of that decision. 2. The evidence received since the October 2014 rating decision includes evidence that relates to unestablished facts necessary to substantiate the claims, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claims for service connection for axonal sensorimotor peripheral neuropathy of the right and left lower extremities. CONCLUSIONS OF LAW 1. The October 2014 rating decision denying the claim for service connection for axonal sensorimotor peripheral neuropathy of the right lower extremity is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. 2. The October 2014 rating decision denying the claim for service connection for axonal sensorimotor peripheral neuropathy of the left lower extremity is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. 3. New and material evidence has been received to warrant reopening the claims for axonal sensorimotor peripheral neuropathy of the right and left lower extremities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February to June 1985 and from January to March 1991. He also had service in the Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Although the RO readjudicated the merits of the Veteran’s previously denied claims for service connection in the July 2017 rating decision on appeal and therefore implicitly reopened the claims, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). In January 2020, the Veteran testified during a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. New and Material Evidence Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). New evidence means 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). By way of history, the RO initially denied the Veteran’s claims for service connection for axonal sensorimotor peripheral neuropathy of the right and left lower extremities in a September 2009 rating decision, finding that there was no nexus between the Veteran’s disability and his service. In an October 2014 rating decision, the RO declined to reopen the Veteran’s claims, again finding no evidence of a nexus. Although the Veteran was notified of the RO’s decision and his appellate rights, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of issuance of that decision. 38 C.F.R. § 20.1103. That decision, thus, became final. Evidence received since the October 2014 final rating decision includes the Veteran’s January 2020 Board testimony detailing the onset of his neurological disability. Given the basis for the prior denial, this evidence is new to the record, relates to previously unestablished facts to support the claims, and raises a reasonable possibility of substantiating the claims. Accordingly, reopening of the claims is warranted. REASONS FOR REMAND At his January 2020 hearing, the Veteran testified that records associated with his claim for Social Security Administration benefits contained a letter from a Dr. Early, a medical doctor, in which the doctor addressed the etiology of the Veteran’s peripheral neuropathy. Despite his attorney’s assurances at the hearing that these records—specifically, the letter—would be provided, no such evidence has been submitted. When VA has actual notice of the existence of relevant private treatment records, its duty to assist includes requesting those records. Upon remand, the records from the Social Security Administration should be obtained as the records are relevant and there is a reasonable possibility that they could help substantiate the Veteran’s claims. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (VA’s duty to assist includes obtaining relevant social security records); see also Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In addition, in July 2017, the Veteran underwent a VA examination in relation to his claims. At that time, the examiner concluded that it was less likely than not that the Veteran’s axonal sensorimotor peripheral neuropathy was due to service. His rationale was that there was no evidence in the service record of any evidence of trauma to the legs. The Board finds this examination to be inadequate. A medical opinion based solely on the absence of documentation in the record is inadequate, if it does not take into account the Veteran’s reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Therefore, the Board finds that a new examination is warranted. The matters are REMANDED for the following action: 1. Contact the Veteran and provide him the opportunity to submit any evidence in support of his claims, to specifically include the letter from Dr. Early identified at the January 2020 hearing. 2. Obtain all documents pertaining to any application by the Veteran for Social Security Administration disability benefits, including all medical records considered in deciding the claim. 3. Once those documents are associated with the record, schedule the Veteran for an examination to address the etiology of his axonal sensorimotor peripheral neuropathy of the right and left lower extremities. The examiner is asked to determine whether it at least as likely as not (that is, a 50 percent or greater probability) that the Veteran’s axonal sensorimotor peripheral neuropathy of the lower extremities had onset in, or is otherwise related to, his military service, to include periods of active duty for training (ACDUTRA). The examiner is advised that the Veteran’s is competent to report onset and continuity of symptoms. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.