Citation Nr: 21071310 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-29 771 DATE: November 30, 2021 ORDER New and material evidence having been added to the record, the request to reopen the claim of entitlement to service connection for bilateral peripheral neuropathy of the lower extremities is granted. REMANDED Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, to include as due to herbicide exposure, is remanded. FINDINGS OF FACT 1. A November 2011 rating decision denied entitlement to service connection for bilateral peripheral neuropathy of the lower extremities. The denial is final. 2. Evidence added to the record since November 2011 is not cumulative or redundant of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for peripheral neuropathy of the lower extremities. CONCLUSION OF LAW New and material evidence has been received since the final November 2011 rating decision to reopen the claim of entitlement to service connection for bilateral peripheral neuropathy of the lower extremities. 38 U.S.C. §§ 5103, 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from June 1969 to April 1973. He is the recipient of several medals, including a Vietnam Service Medal, and a Republic of Vietnam Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an April 2021 Board hearing. A copy of the transcript has been associated with the file. 1. New and material evidence having been received, the claim to reopen the previously denied entitlement to service connection for bilateral peripheral neuropathy of the lower extremities claim is granted. The Veteran seeks to reopen a claim of service connection for bilateral peripheral neuropathy of the lower extremities, to include as due to Agent Orange (AO) exposure. By way of history, a November 2011 rating decision originally denied entitlement to service connection for peripheral neuropathy of the lower extremities. The Veteran submitted correspondence to reconsider in November 2011; however, this correspondence did not meet the requirement for a valid Notice of Disagreement pursuant to 38 C.F.R. § 20.201 (a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result). As such, the denial is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. In January 2016, the Veteran requested to reopen his claim of service connection for peripheral neuropathy of the bilateral lower extremities. A February 2016 rating decision denied service connection because the evidence submitted was not new and material. Therefore, new and material evidence is needed to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7104(b), 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 which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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). 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). See Duran v. Brown, 7 Vet. App. 216, 220 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible"). 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). In this case, the Board finds that new and material evidence has been received subsequent to the last final rating decision. Relevant evidence added to the claims file since the November 2011 rating decision includes hearing testimony by the Veteran during his April 2021 virtual Board hearing indicating a link between the Veteran's currently diagnosed peripheral neuropathy and service. This evidence satisfies the definition of new and material evidence, as it was not before decision makers at the time of the last final rating decision and provides evidence towards substantiating the Veteran's claim. Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's previously denied claim of service connection for bilateral peripheral neuropathy of the lower extremities. 2. Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, to include as due to herbicide exposure, is remanded. The Veteran contends that his bilateral lower extremity peripheral neuropathy is due to Agent Orange exposure while serving in the Republic of Vietnam. The Board finds that more development is necessary prior to final adjudication of the claim on appeal. The record contains competent evidence of a currently diagnosed condition, demonstrates that the Veteran has conceded in-service exposure to herbicides, and indicates that the claimed disability or symptoms may be associated with the established in-service event, injury, or disease. For Veterans who have been exposed to an herbicide agent (to include Agent Orange) during active service, presumptive service connection is available for certain enumerated diseases. See 38 C.F.R. § 3.309(e). However, to warrant presumptive service connection for peripheral neuropathy as due to herbicide exposure, peripheral neuropathy must have become manifest to a degree of ten percent or more within one year after the last in-service exposure. The evidence of record reveals the Veteran's active service in the Republic of Vietnam; thus, he is presumed to have been exposed to an herbicide agent. See 38 C.F.R. § 3.307(a)(6)(iii). While early onset peripheral neuropathy is an enumerated disease under 38 C.F.R. § 3.309 (e), delayed-onset peripheral neuropathy is not. The Veteran began to show signs and symptoms of bilateral numbness and pain beginning in approximately 2005, more than 30 years after the Veteran left service. Also, the Veteran's first diagnosis of peripheral neuropathy occurred in approximately 2010. As a result, the evidence of record fails to reveal a diagnosis of bilateral lower extremity peripheral neuropathy within a year of the Veteran's separation from active duty service. This forecloses the grant of service connection on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. Nevertheless, a presumption of service connection provided by law is not the sole method of showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Accordingly, the Board notes that although the bilateral lower extremity peripheral neuropathy has not been shown to warrant a regulatory presumption of service connection as a result of in-service herbicide exposure, it must still be determined whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, the Board finds that the Veteran should be scheduled for a VA examination and opinion to determine whether the Veteran has current bilateral lower extremity peripheral neuropathy disabilities that are related to service to include as due to his presumed in-service herbicide exposure. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate examiner to determine the nature and etiology of his bilateral lower extremity peripheral neuropathy. After a review of the record, including this Remand, and a thorough examination of the Veteran, the examiner is asked to address: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lower extremity peripheral neuropathy had its onset in service or is due to an in-service disease, injury, or event, to include as due to his presumed exposure to Agent Orange. The medical professional is advised that even if there is no objective evidence that peripheral neuropathy manifested within one year of exposure to herbicide agents, service connection on a direct basis may still be warranted with evidence of actual direct causation. Accordingly, a negative medical opinion based on no objective evidence of peripheral neuropathy within one year of the last exposure to herbicide agents is invalid. A complete rationale for all opinions reached should be included. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.