Citation Nr: 21067460 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-32 723 DATE: November 4, 2021 ORDER The petition to reopen the claim for service for peripheral neuropathy, upper extremities is granted. REMANDED Entitlement to service connection for peripheral neuropathy, upper extremities is remanded. Entitlement to service connection for peripheral neuropathy, lower extremities is remanded. FINDINGS OF FACT 1. The claim for entitlement to service connection for peripheral neuropathy, upper extremities was initially denied in the September 1992 Rating Decision. The Veteran was notified of the decision, but did not appeal, thus it became a final decision. The Veteran's claim was also denied in September 2010. 2. Evidence received since the September 1992 and September 2010 rating decisions relate to a previously unestablished fact necessary to substantiate the claim for entitlement to service connection for peripheral neuropathy, upper extremities. CONCLUSION OF LAW New and material evidence to reopen the claim for service connection peripheral neuropathy upper extremities has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a)(2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1966 to July 1969. In July 2020, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. The Board of Veterans' Appeals (Board) notes that the Regional Office (RO) found new and material evidence existed to reopen the claim for peripheral neuropathy, upper extremities in the May 2018 Statement of the Case. Despite the determination by the RO concerning new and material evidence, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of the previously denied claim. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 2001) (the Board is under the statutory obligation to conduct a de novo review of the new and material issue). Thus, the title page includes the issue of whether new and material evidence has been presented to reopen the claim for service connection for peripheral neuropathy, upper extremities. 1. The petition to reopen the claim for peripheral neuropathy upper extremities Generally, a claim that has been denied in a final unappealed decision may not thereafter be reopened and allowed. 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 shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decision makers that bears directly and substantially upon the specific matter under consideration; such new and material evidence can neither be cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 3.156(a); Hickson v. Shinseki, 23 Vet. App. 394, 398 (2010). The Board will generally presume the credibility of the newly submitted evidence for determining whether new and material evidence has been presented. Duran v. Brown, 7 Vet. App. 216, 220 (1994). 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 deciding whether new and material evidence has been submitted, the Board looks at the evidence submitted since the last final denial of the claim on any basis. Hickson v. West, 12 Vet. App. 247, 251 (1999). The petition to reopen the claim for entitlement to service connection for peripheral neuropathy, upper extremities is granted. Here, the claim for entitlement to service connection for peripheral neuropathy, upper extremities was denied in the September 1992 rating decision due to lack of a current disability. The Veteran was notified but did not appeal the decision, thus it became a final decision. See 38 U.S.C. §§ 7105, 38 C.F.R. § 20.1103. Similarly, the claim was denied in a September 2010 rating decision in part because the Veteran's medical records did not show current treatment for this condition. At the time of the last final decision, the September 2010 Rating Decision, the evidence of record included: the Veteran's service treatment records (STRs) from July 1966 to July 1969; VA treatment records from January 2009 to January 2010; and a November 2009 VA Form 21-4138, Statement in Support of Claim. The evidence received since the September 2010, includes the Veteran's testimony at the July 2020 Board hearing, a private magnetic resonance imaging (MRI) dated October 2019, and October 2019 private treatment record from the Neurological Care Center of Montgomery, P.C, which confirmed a current diagnosis. The Board finds that the evidence is new as it was not previously before the agency and it is relevant because it relates to the issues of a current disability and etiology which is related to nexus. Accordingly, the Veteran's claim for peripheral neuropathy is reopened based on new and material evidence. REASONS FOR REMAND 1. Peripheral neuropathy upper and lower extremities is remanded. Based on a detailed review of the claims file, the Board finds a remand is necessary in order to provide the Veteran a VA examination for his peripheral neuropathy of the upper and lower extremities claims. The Board notes that the claims file does not contain a VA examination or VA medical opinion addressing the etiology of his peripheral neuropathy of the upper and lower extremities. However, the Board finds that the requirements for a VA examination are met. A VA examination is warranted where (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran's private treatment records confirm he was diagnosed with peripheral neuropathy of the upper and lower extremities. See October 2019 Neurological Care Center of Montgomery, P.C. Treatment Record. Regarding the second element of McLendon, the Veteran contends that his bilateral upper and lower extremity peripheral neuropathy is due to Agent Orange. See December 2016 Notice of Disagreement (NOD). Notably, VA has conceded the Veteran's exposure to Agent Orange. See March 2017 Rating Decision (granting service connection for diabetes mellitus based on presumption). Thus, the evidence demonstrates that Veteran has current disabilities that may be related to his in-service exposure to Agent Orange. However, the record does not contain a medical opinion which addresses the etiology of the Veteran's current upper and lower extremity peripheral neuropathy disabilities. As such, a remand is warranted under McLendon to provide the Veteran with a VA examination and to obtain a medical opinion. The Board notes that the October 2019 private physician indicated that the Veteran's lower extremity peripheral neuropathy was associated with his service-connected diabetes mellitus, type two (DMII). See October 2019 Neurological Care Center of Montgomery, P.C. Treatment Record. Thus, on remand the VA examiner should also address whether the Veteran's peripheral neuropathy of the upper and lower extremities were either caused or aggravated by his service-connected DMII. The Board notes the claims file reflects that the Veteran has been receiving treatment from the Montgomery VA Medical Center (VAMC), and Birmingham VAMC, and that records dated through February 2017 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain the Veteran's comprehensive VA treatment records for the period from February 2017 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers. See 38 C.F.R. § 3.159(c)(3) (2020). The Board observes that the Veteran has been treated at Birmingham VAMC, and Montgomery VAMC. 2. Schedule a VA examination from an appropriate examiner to address the nature and etiology of the Veteran's claimed peripheral neuropathy of the upper and lower extremities. The claims file and copies of any additional pertinent records should be made available to the examiner for review. The examination should include any diagnostic testing or evaluation deemed necessary by the examiner. 3. After a review of the evidentiary record, and examination of the Veteran if deemed necessary by the examiner, the examiner is asked to respond to the following inquiries: 4. Identify the Veteran's upper and lower extremity diagnoses to include peripheral neuropathy. 5. Determine the etiology of the Veteran's upper and lower extremity peripheral neuropathy. 6. Opine whether it is at least as likely as not that the Veteran's upper and lower extremity peripheral neuropathy (i) manifested during active service, (ii) manifested to a compensable degree within one year after active service in July 1969, or (iii) is otherwise etiologically related to his active service, including Agent Orange exposure. It should be noted that the Veteran has been found to have service within the Republic of Vietnam and is therefore presumed to have been exposed to certain herbicide agents, including Agent Orange, during his military service. 7. Provide an opinion whether it is at least as likely as not that the Veteran's upper and lower extremity peripheral neuropathy was/were caused by any of the Veteran's service-connected disabilities to include DMII. Provide an opinion whether it is at least as likely as not that the Veteran's upper and lower extremity peripheral neuropathy underwent an incremental increase (aggravated), regardless of permanence, by his service-connected disabilities to include DMII. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established principles. A rationale for all opinions expressed should be provided in the examination report. If medical literature is relied upon in rendering any opinion(s), the VA examiner should identify and specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. (Continued on the next page) 8. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.