Citation Nr: 21064286 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-42 970 DATE: October 19, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for left lower extremity arterial occlusive disease is deemed reopened. REMANDED Entitlement to a disability rating greater than 10 percent for peripheral neuropathy, right lower extremity (claimed as peripheral neuropathy right foot) is remanded. Entitlement to a disability rating greater than 10 percent for peripheral neuropathy, left lower extremity (claimed as peripheral neuropathy left foot) is remanded. Entitlement to service connection for left lower extremity arterial occlusive disease is remanded. FINDING OF FACT An August 2012 rating decision was issued denying the Veteran's claim for service connection for left lower extremity arterial occlusive disease and additional evidence or a notice of disagreement was not associated with the record within one year after notification of the decision; but the evidence received since the August 2012 rating decision is new, material, and gives rise to a reasonable possibility of substantiating the Veteran's claim. CONCLUSION OF LAW The August 2012 rating decision denying service connection for left lower extremity arterial occlusive disease is final; 38 U.S.C. § 4005; 38 C.F.R. §§ 3.104, 20.302, 20.1103; and new and material evidence has been received to reopen service connection for left lower extremity arterial occlusive disease. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Army from July 1968 to August 1971, during the Vietnam Era. This matter comes before the Board of Veterans Appeals (Board) on appeal of an October 2015 rating decision issued by a Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement (NOD) in October 2015. The RO issued a statement of the case in June 2017 and a VA Form 9 was submitted in August 2017. This matter is now properly before the Board. 1. New and material evidence having been received, the claim for service connection for left lower extremity arterial occlusive disease is deemed reopened. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. 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 which 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). The Court has also held that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade, 24 Vet. App. 110. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO's actions, given the previous unappealed denial of the claims on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The Veteran's claim for service connection of left lower extremity arterial occlusive disease was denied in August 2012. The Veteran did not file a notice of disagreement, nor did the Veteran submit any new evidence within one year of the original denial of his claim for service connection. The RO's 2012 rating decision became final in August 2013. In May 2015, the Veteran filed a claim to reopen the claim for entitlement to service connection for left lower extremity arterial occlusive disease. The Veteran's claim to reopen was denied in October 2015 and the Veteran filed a timely NOD in October 2015. The Board has thoroughly and sympathetically reviewed the Veteran's claims file and all evidence filed since the time that his claim became final. Here, the Veteran's September 2015 VA examination indicates that the Veteran has symptoms of pain, numbness and tingling in both lower extremities. The Veteran's January 2019 VA examination also indicates that the Veteran suffers from pain, numbness and tingling in both lower extremities. The Board finds that this evidence within the record is new since the time the RO's August 2012 decision became final. The September 2015 and January 2019 VA examinations comment on the existing evidence that was not previously submitted to agency decision makers as it discusses the severity and condition of the Veteran's bilateral leg pain, numbness, and tingling. The Board's consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. In this case, the Board finds that the evidence of record could substantiate the claim were the claim to be reopened. REASONS FOR REMAND 1. Entitlement to a disability rating greater than 10 percent for peripheral neuropathy, right lower extremity (claimed as peripheral neuropathy right foot). See section 2 below. 2. Entitlement to a disability rating greater than 10 percent for peripheral neuropathy, left lower extremity (claimed as peripheral neuropathy left foot). The Veteran was afforded a VA examination for peripheral neuropathy in September 2015. The Board finds that it has been 6 years since the Veteran's last VA examination to assess the severity of the Veteran's peripheral neuropathy. The Veteran was afforded an examination in January 2019 for artery and vein conditions for vascular diseases which indicated that the Veteran has symptoms of numbness, tingling, pain in both lower extremities. The Board is cognizant that this appeal has been pending for several years and finds it necessary to remand the Veteran's claim to obtain additional records and afford the Veteran a new examination based on the symptoms noted in the January 2019 examination that indicate the Veteran's condition of peripheral neuropathy of the lower extremities may have worsened. The Board finds the evidence of record indicates that the Veteran's conditions may have worsened since his previous VA exam and entitles the Veteran to a new examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). Without a new exam, the Board cannot be adequately informed as to the current status of the Veteran's disabilities. 3. Entitlement to service connection for left lower extremity arterial occlusive disease is remanded. At issue is whether the Veteran is entitled to service connection for left lower extremity arterial occlusive disease. As of this examination, the Veteran's claim for service connection of his left lower extremity arterial occlusive disease is reopened. The Veteran has not had a VA examination to particularly assess the nature and etiology of his claimed disability. The Board finds that the April 2011 VA examination does indicate that the Veteran did have arterial occlusive disease, however the nature of his left lower extremity was not clearly indicated. The Board finds that there is a potential link between the Veteran's current symptoms and considering that the Veteran is service connected for right lower extremity arterial occlusive disease. The Board concludes that sufficient evidence to trigger the VA's duty to assist has been submitted, and this matter must be remanded for a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records and relevant private treatment records. Ask the Veteran to identify any private medical care providers who treated him for his service-connected disabilities. After securing any necessary authorization, obtain records from any identified providers. 2. After completion of the above, schedule the Veteran for a VA examination with an appropriate clinician to assess the severity of the Veteran's bilateral peripheral neuropathy of the lower extremities. The claims file should be made available to and reviewed by the examiner. An in-person examination should be scheduled. All necessary tests should be performed. All findings should be reported in detail. 3. As to the Veteran's claim to service connection for left lower extremity arterial occlusive disease, the VA examiner should address the following: a. Is it at least as likely as not (50 percent or more probability) that a medical nexus exists between an in-service incurrence (event, injury, or disease) and a current diagnosis of left lower extremity arterial occlusive disease. c. Is it at least as likely as not that a current diagnosis of left lower extremity arterial occlusive disease is proximately due to or aggravated beyond its natural progression by a service-connected disability. The examiner is asked to consider all of the Veteran's service-connected disabilities, paying particular attention to diabetes mellitus, peripheral neuropathy, and right lower extremity arterial occlusive disease. Provide an opinion as to the nature and etiology of a left lower extremity arterial occlusive disease diagnosis. CONTINUED ON NEXT PAGE 4. A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.