Citation Nr: 21003708 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 190719-23302 DATE: January 22, 2021 ORDER New and relevant evidence has been received to reopen the claim for service connection for polyneuropathy (also claimed as peripheral neuropathy) and service connection is granted. FINDINGS OF FACT 1. In a December 2017 rating decision, the RO denied the Veteran’s claim for service connection for polyneuropathy of the lower extremities; the Veteran did not appeal that decision or submit relevant evidence during the appeal period and that decision is final. 2. Some of the evidence received since the December 2017 final decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for polyneuropathy of the lower extremities. 3. The preponderance of the evidence shows that the Veteran’s exposure to Agent Orange caused his polyneuropathy of the lower extremities. CONCLUSIONS OF LAW 1. New and relevant evidence has been received to reopen the claim for service connection for polyneuropathy of the lower extremities. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for bilateral extremity polyneuropathy have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran serviced on active duty from July 1965 to April 1967 to include in the Republic of Vietnam. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. This decision has been written consistent with the new AMA framework. In May 2019 the Veteran filed a supplemental claim for the issues of whether new and relevant evidence was received to readjudicate the previously denied claim of service connection for polyneuropathy. In a June 2019 rating decision, the AOJ denied the claim The Veteran timely appealed this decision to the Board and requested direct review of the evidence considered by the AOJ. In an October 2019 decision, the Board denied reopening the claim The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) which, in a September 2020 Order, vacated and remanded the issue for action consistent with a Joint Motion for Partial Remand (Joint Motion). New and Relevant Evidence A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303 (a). To establish a right to compensation for a present disability, a veteran 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 (Fed. Cir. 2004). The law provides that diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a)(6). A veteran is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975 (Vietnam era), unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). The presumption of service connection requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307 (a)(6)(ii). Early onset peripheral neuropathy is required to become manifest to a compensable degree within one year from last exposure. If a Veteran was exposed to an herbicide agent during active military, naval, or air service, several diseases listed under 38 C.F.R. § 3.309 (e) (including early onset peripheral neuropathy) shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 1. Whether new and relevant evidence has been received to reopen a claim for service connection for bilateral extremity polyneuropathy and if so whether service connection is warranted The AOJ initially denied the Veteran's service connection claim for polyneuropathy in a December 2017 rating decision. At that time, the relevant evidence of record consisted of the Veteran's service treatment records (STRs), a November 2017 VA examination, the Veteran's lay statements, and post-service diagnosis of evidence of complaints of upper extremity tingling/numbness. Upon review of this evidence, the AOJ denied the claim on the basis that service connection could not be granted since the neuropathy did not first become manifest to a compensable degree within one year after last exposure to herbicides; STRs did not contain complaints, treatment, or diagnosis for the disability; and the evidence did not show evidence of an event, disease or injury in service therefore there was no link between the diagnosed medical condition and military service. The Veteran was notified of this decision and of his appellate rights but did not file a timely notice of disagreement (NOD) or submit new and material evidence within one year of the December 2017 rating decision. Therefore, the December 2017 VA rating decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Evidence received since the December 2017 rating decision includes VA treatment records that confirm a diagnosis of bilateral lower extremity neuropathy and a January 2018 private Peripheral Nerve Conditions DBQ. Therefore, the evidence submitted since the December 2017 rating decision is new and material and the Veteran's claim for service connection for polyneuropathy of the lower extremities is reopened. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. In regard to entitlement to service connection, the Board notes that despite the Veteran’s polyneuropathy not being diagnosed within a year of exposure, service connection can still be granted on a non-presumptive basis. A November 2017 VA peripheral nerves examination showed a diagnosis of bilateral peripheral neuropathy and left foot drop. The examiner opined the claimed condition was at least as likely as not incurred in or caused by in-service injury, event, or illness. The rationale provided was that the Veteran had no issues related to the claimed condition prior to service, onset was during service, and there is evidence of current, chronic and continuous treatment. The examiner noted the STRs show treatment for the condition, however there is no evidence of that. According to the January 2018 private peripheral nerve condition DBQ, the examiner confirmed the June 2017 diagnosis of moderate to severe polyneuropathy and determined that there was no other cause other than the Veteran’s history of Agent Orange exposure to explain his neuropathy. Based on the foregoing supportive evidence and the lack of competent evidence to the contrary, the Board finds that the Veteran’s polyneuropathy of the lower extremities is etiologically related to exposure to herbicides during active duty service and service connection is warranted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.