Citation Nr: 21062269 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-49 167 DATE: October 6, 2021 ORDER The application to reopen the previously denied claim for peripheral neuropathy is granted. REMANDED Entitlement to service connection for peripheral neuropathy right lower extremity, to include as secondary to service-connected diabetes mellitus type II is remanded. Entitlement to service connection for peripheral neuropathy right upper extremity, to include as secondary to service-connected diabetes mellitus type II is remanded. Entitlement to service connection for peripheral neuropathy left lower extremity, to include as secondary to service-connected diabetes mellitus type II is remanded. Entitlement to service connection for peripheral neuropathy left upper extremity, to include as secondary to service-connected diabetes mellitus type II is remanded. FINDINGS OF FACT 1. In a March 2000 rating decision, the RO denied the Veteran's claim for entitlement to service connection for subacute peripheral neuropathy. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 2. In an April 2002 rating decision, the RO denied the Veteran's claim for entitlement to service connection for subacute peripheral neuropathy as a result of exposure to herbicides. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 3. Evidence received since the April 2002 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a peripheral neuropathy disability and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2000 rating decision that denied the claim for entitlement to service connection for subacute peripheral neuropathy is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 19.52, 20.1103. 2. The April 2002 rating decision that denied the claim for entitlement to service connection for subacute peripheral neuropathy as a result of exposure to herbicides is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 19.52, 20.1103. 3. The evidence received since the April 2002 rating decision is new and material and sufficient to reopen the claim of service connection for a peripheral neuropathy disability of the upper and lower extremities. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from September 1969 to May 1972. He is in receipt of the Vietnam Service Medal and Combat Infantryman's Badge. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine which, inter alia, denied service connection for peripheral neuropathy of the bilateral lower and upper extremities. The Veteran timely filed a notice of disagreement (NOD) in October 2015. A Statement of the Case (SOC) was issued in July 2017. The Veteran timely filed a substantive appeal, via a VA Form 9, appeal to the Board of Veterans' Appeals in September 2017 where he specifically only appealed his service connection claims for peripheral neuropathy. He selected that he read the SOC, and he was only appealing neuropathy. Thus, in the VA Form 9, the Veteran limited his appeal to the claims decided herein. Additionally, in the September 2017 VA Form 9, the Veteran requested a live videoconference hearing at a local VA office. In July 2021 correspondence from the Veteran's attorney, he reported that the Veteran requested to withdraw his request for a Board hearing. The hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e). Whether new and material evidence has been received sufficient to reopen the previously denied claim of service connection for peripheral neuropathy. Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's claim for entitlement to service connection for a peripheral neuropathy disability was initially denied in a March 2000 rating decision. The pertinent evidence then of record include service treatment records, a January 2000 VA examination report, and private treatment records from Metro Pain Clinic. Service connection for subacute peripheral neuropathy due to exposure to Agent Orange (claimed as tingling of the extremities) was denied on the basis that there was no current diagnosis. The Veteran's claim for entitlement to service connection for a peripheral neuropathy disability was again denied in an April 2002 rating decision. The pertinent evidence then of record include service treatment records, a January 2000 VA examination report, private treatment records from Metro Pain Center, and a letter sent to the Veteran in September 2001. The claim was, again, denied on the basis that the Veteran did not have a current diagnosis of transient peripheral neuropathy that appeared within one year of the last exposure to a herbicide agent. Although notified of the March 2000 denial in an April 2000 notification letter and the April 2002 denial in an April 2002 notification letter, the Veteran did not appeal these decisions, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the March 2000 and April 2002 denials are final as to the evidence then of record, and it is not subject to revision the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence added to the claims file since the April 2002 rating decision includes statements from the Veteran, a VA examination report from October 2014, a private Disability Benefits Questionnaire (DBQ) from August 2016, and private treatment records. This evidence provides bases for reopening the claim for service connection. Specifically, the evidence was not before the agency of decision makers at the time of the March 2000 and April 2002 final denials of the claim for service connection, and it is not duplicative or cumulative of evidence previously of record. Moreover, the new evidence submitted is material in that it relates to the basis for the prior denial, i.e., the lack of evidence establishing a current diagnosis. Thus, the evidence received since the last final denial is new and material. Accordingly, the previously denied claims are reopened, and to this extent only, the appeal is granted. The reopened claims are addressed in the Remand section below. REASONS FOR REMAND 1. Service connection for peripheral neuropathy of the bilateral lower and upper extremities, to include as secondary to service-connected diabetes mellitus type II is remanded. Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition noted in service (or in the presumptive period) either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, a disability which is proximately due to, or the result of, a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310. Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). A veteran may be entitled to a presumption of service connection based on exposure to herbicide agents during the Vietnam Era if he or she is diagnosed with certain enumerated diseases, to include early onset peripheral neuropathy. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. Notwithstanding the regulations governing presumptive service connection based on herbicide exposure, service connection may also be established with proof of actual direct causation. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Notably, after the last final denial, but prior to the most recent claim to reopen, VA amended its regulations regarding presumptive service connection for peripheral neuropathy associated with herbicide agent exposure, effective from September 6, 2013. See 78 Fed. Reg. 173, 54763 54766 (September 6, 2013) (codified at 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2014). The amendment removed the requirement that an acute or subacute peripheral neuropathy appear within weeks or months after exposure and removed the requirement that the condition resolve within two years of the date of onset in order for the herbicide agent presumption to apply. To effectuate this change, VA replaced the terms "acute and subacute" and "transient" peripheral neuropathy with "early onset." See 38 C.F.R. § 3.309(e) (2014). Under these amendments, early-onset peripheral neuropathy must still become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer must be transient. 38 C.F.R. § 3.307(a)(6)(ii) (2014). The Veteran contends that he has a diagnosis of peripheral neuropathy due to his service-connected diabetes mellitus type II. He also contends that has been having symptoms of peripheral neuropathy described a tingling in the hands, feet, and neck since service. At a January 2000 VA examination for joints, the Veteran reported that his hands "lock" with his fingers set in a flexed position about once every two months. For example, the activity occurred when he grasps the steering wheel of a car before he starts driving. His hands slowly improve upon removing his hands from a flexed position. The locking problem slowly resolves over 15 minutes. A neurological check revealed coordination of upper extremities and that they were intact to fine motor movements. Deep tendon reflexes were symmetric and bilateral. There was no gross sensory defect to light touch in upper extremities and good muscle tone. The muscle strength was 5/5 throughout bilaterally (finger flexion/extension, biceps/triceps, deltoid). There was no established diagnosis for the hand-locking syndrome. In an October 2014 VA examination report, the clinician found that the Veteran does not have a diagnosis of diabetic peripheral neuropathy. The Veteran reported that he has had intermittent tingling and numbness in the finger tips and toes since the 1970s. He mentioned that he has talked to his private doctor and had some tests, was diagnosed with carpal tunnel syndrome a few years ago, and given wrists splint. He complained of pain in both wrists and occasional neck pain radiating down to the left upper extremity for over 12 years. On examination, the Veteran did not have constant and intermittent pain of the upper and lower extremities. He reported moderate paresthesias and/or dysesthesias. He reported moderate numbness in the bilateral upper and lower extremities. Strength testing was normal outside of the left grip which was rated as a 4/5. Deep tendon reflexes were decreased in the bilateral biceps and absent everywhere else. Light touch/monofilament testing result were normal. Position sense, vibration sensation, and cold sensation was normal. He did not have muscle atrophy. There was no EMG testing performed. The Veteran submitted one page from a January 2016 office visit at Community of Care that lists "neuropathy (nerve damage)" on the active problems list. An August 2016 DBQ report reflects that Dr. J.A. checked that the Veteran has a diagnosis of diabetic peripheral neuropathy from January 2016. He checked that the Veteran had symptoms attributable to diabetic peripheral neuropathy but did not note what symptoms were attributable to diabetic peripheral neuropathy. In August 2021 correspondence, the Veteran's representative requested a remand for a new VA examination. He reported that the October 2014 VA examination showed a diagnosis of diabetes mellitus type II with no complications, well controlled but no diabetic peripheral neuropathy. However, the Veteran reported a long history of symptoms including numbness and tingling. The examiner noted moderate paresthesias and/or dysesthesias in the bilateral upper and lower extremities, and moderate numbness in the bilateral upper and lower extremities. He reported that the examiner noted that the Veteran's complaints of numbness and tingling were present long before the diagnosis of diabetes mellitus. However, the examiner did not indicate whether diabetes mellitus aggravated numbness and tingling in the bilateral upper and lower extremities. Moreover, a private August 2016 DBQ shows a diagnosis of neuropathy. Therefore, he requested a new VA examination to allow the examiner to assess whether the Veteran has a current diagnosis of bilateral upper and lower peripheral neuropathy, and to assess whether the condition is caused by or aggravated by diabetes mellitus type II; or, whether the Veteran's reports of numbness and tingling since service, if credible, are consistent with early onset peripheral neuropathy. Accordingly, a new VA examination is warranted to address the conflicting evidence as to whether the Veteran has a current diagnosis of peripheral neuropathy of the bilateral upper and lower extremities secondary to his service-connected diabetes mellitus; and, to address the Veteran's reported symptoms of numbness and tingling since service to determine whether they represent the early onset of peripheral neuropathy since the 1970s. A direct theory of entitlement should be addressed as well. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine whether he has a current peripheral neuropathy disability. If the Veteran has a diagnosis of peripheral neuropathy of the upper and/or lower extremities, the examiner must opine as to the likely onset and likely etiology of this disability. All indicated tests, including EMG if necessary, should be performed and findings reported in detail. The claims folder must be made available to the examiner for review prior to examination. The examiner should identify whether the Veteran has peripheral neuropathy of the upper and/or lower extremities, and if so, the examiner should provide the basis of this finding. (a) The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's peripheral neuropathy of the upper and/or lower extremities, if present, is diabetic peripheral neuropathy; or, if not, whether it is aggravated (made worse) by the service-connected diabetes mellitus disability, to include his reported symptoms of moderate paresthesias and/or dysesthesias in the bilateral upper and lower extremities, and moderate numbness in the bilateral upper and lower extremities. (b) The examiner should opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral upper and lower extremities neuropathy, if present, had its onset within one year of the last date of his presumed in-service exposure to herbicides; or, is otherwise related to any in-service injury or disease. In this regard, the examiner should address whether the Veteran's reports of numbness and tingling in his extremities since service is consistent with a diagnosis of peripheral neuropathy. In providing the requested opinion, the clinician should consider the Veteran's reported symptoms in service and thereafter, including the nature of his reported symptoms and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.