Citation Nr: 21072331 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-30 786 DATE: December 2, 2021 ORDER The petition to reopen the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. REMANDED Entitlement to a rating higher than 10 percent for service-connected diabetes mellitus type II is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for tinnitus is remanded. FINDING OF FACT 1. The November 2014 and June 2015 rating decisions denied service connection for peripheral neuropathy of the left lower extremity, the Veteran was notified of the decisions and apprised of his right to appeal, but he did not appeal in a timely fashion or submit new and material evidence within one year of notice of the decisions. 2. The evidence received since the June 2015 rating decision is neither cumulative nor repetitive of facts that were previously considered regarding the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity. CONCLUSION OF LAW 1. The November 2014 and June 2015 rating decisions that denied service connection for peripheral neuropathy of the left lower extremity are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103. 2. The evidence received since the June 2015 rating decision is new and material for the purpose of reopening the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Army from May 1968 to January 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a July 2017 rating decision issued by the Agency of Original Jurisdiction (AOJ). In his June 2018 substantive appeal (on VA Form 9), the Veteran requested a hearing at a local VA office. The Veteran was scheduled for a Travel Board hearing before the undersigned at the New York, New York, VA Regional Office (RO), but failed to appear for the hearing. He has not provided a good-cause explanation for his absence or request to reschedule the hearing; therefore, his hearing request is considered withdrawn. 38 C.F.R. § 20.702(d). This appeal has been advanced on the Board of Veterans' Appeals (Board's) docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Petition to reopen the claim for entitlement to service connection for peripheral neuropathy of the left lower extremity As general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means 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. 38 C.F.R. § 3.156(a). 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. Id. 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). Moreover, the veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran seeks service connection for peripheral neuropathy of the left lower extremity, to include as secondary to his service-connected diabetes mellitus and/or exposure to herbicide agents. Service connection for peripheral neuropathy of the left lower extremity was initially denied in November 2014 and June 2015 rating decisions. The Veteran was notified of the denial by letters dated November 26, 2014 and June 4, 2015. The Veteran did not appeal the decisions within one year of notification of the decisions, and the decisions therefore became final. See 38 C.F.R. § 20.302 (a). The Veteran filed to reopen his claim for entitlement to service connection for peripheral neuropathy of the left lower extremity in March 2017. In a subsequent July 2017 rating decision, the AOJ determined that new and material evidence had not been submitted to reopen the claim for service connection for peripheral neuropathy of the left lower extremity. At the time of the prior November 2014 and June 2015 rating decisions, the record included the Veteran's application for service connection, service treatment records, VA treatment records, private treatment records, and the report of a VA examination conducted in November 2014. In essence, at the time of the prior decision, there was no accepted evidence of diabetic peripheral neuropathy of the left lower extremity or a nexus between the Veteran's claimed condition to his active service. The Veteran did not appeal the decisions and they became final. 38 C.F.R. § 20.1103. As such, the Veteran's claim may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C. § 7105. The evidence received since the June 2015 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. Additional VA treatment records added to the claims file show evidence of diabetic neuropathy diagnosis. See CAPRI. Further, the Veteran has alternatively asserted that his neuropathy may be due to his exposure to herbicide agents while serving in Vietnam. A July 2021 VA Memorandum note that exposure to agent orange has been conceded. See July 2021 VA Memo. This new evidence addresses the reasons for the previous denial, i.e., the absence of diabetic neuropathy and a possible nexus between the Veteran's current neuropathy and his active service or service-connected diabetes mellitus. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the petition to reopen the claim for entitlement to service connection for peripheral neuropathy of the left lower extremity, is granted. REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for diabetes mellitus type II is remanded. Although the Board regrets the additional delay, the issue of entitlement to a higher rating for diabetes mellitus must be remanded for a new examination. In July 2017, the Veteran underwent a VA examination for purposes of assessing the severity of his diabetes. The examination report indicated that the Veteran's diabetes is controlled by diet. However, VA medical records reveal that the Veteran's diabetes is controlled by diet and exercise and that his hemoglobin A1c. increased from 6.8% on May 3, 2019 to 7.5% on July 20, 2020. See CAPRI. Because the evidence suggests that the Veteran's diabetes may have increased in severity after the last examination, another examination is warranted. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 4. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. 5. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. The Veteran claims that he has bilateral upper and lower extremity peripheral neuropathy secondary to his service-connected diabetes mellitus. Alternatively, he also claims that his conditions may be due to herbicide agent exposure in Vietnam. The Board notes that peripheral neuropathy can only be found to be presumptively associated with herbicide agent exposure in Vietnam if it manifests to a degree of 10 percent or more within one year after the date of last exposure to herbicide agents. However, even if peripheral neuropathy does not meet the definition of "early-onset" peripheral neuropathy, a veteran can still establish service connection for such disability by showing it is directly related to service without the benefit of the presumptive provisions of 38 C.F.R. § 3.309(e). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). These issues are therefore remanded in order to obtain a medical opinion regarding direct service connection. The Veteran is also service connected for diabetes mellitus. While the July 2017 VA examination for diabetes did not find any diabetic neuropathy, the Veteran's VA treatment records do show a diagnosis of diabetic neuropathy in his problem list at least from September 2015. At the January 2021 podiatry consultation, the Veteran was also diagnosed with diabetes peripheral neuropathy. See CAPRI. The Board therefore requests that a VA examination also address whether the Veteran has neuropathy in any extremity that is caused or aggravated by his service-connected diabetes mellitus. 6. Entitlement to service connection for tinnitus is remanded. In the July 2017 VA Hearing Loss and Tinnitus examination, the examiner reported that the Veteran did not complain of tinnitus symptoms at that time. The examiner therefore concluded that, the Veteran did not have a current tinnitus diagnosis. The Board notes, however, that in a September 2013 Audiology Diagnostic Study Note, the Veteran reported bilateral episodic tinnitus. The Veteran also stated in his August 2017 Notice of Disagreement (NOD) that his tinnitus condition is related to the exposure to high pitch 4.2 mortars, during active service. The Veteran is competent to report his symptoms of tinnitus. In light of the competing information of record, it is unclear whether the Veteran has a current diagnosis of tinnitus. Therefore, another examination is warranted. The examiner should address the conflicting information between the Veteran's July 2017 examination and his statement in the course of medical treatment. If a diagnosis of tinnitus is identified, the examiner should then address its etiology. The matters are REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records and associate them with the claims file. 2. Scheduled the Veteran for an examination with an appropriate clinician for purposes of assessing the severity of his diabetes mellitus. The examiner should provide a full description of the disability and report all signs and symptoms necessary for an evaluation of the Veteran's disability under the relevant rating criteria. A complete medical rationale for any opinions expressed must be provided. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any diagnosed upper or lower extremity neuropathy. The examiner must review the entire file. All indicated evaluations, studies, and tests should be conducted. The examiner should then address: (a) The current/appropriate diagnoses for any upper and lower extremity neurological condition, including peripheral neuropathy. (b) For any diagnosed neuropathy affecting any extremity address whether it is at least as likely as not that the disorder was (i) caused by or (ii) aggravated by the Veteran's service-connected diabetes mellitus. If diabetic neuropathy is not diagnosed, discuss VA treatment records showing that the Veteran has been diagnosed with diabetic neuropathy in September 2015 and the January 2021 podiatric findings. (c) For any diagnosed neuropathy affecting any extremity, address whether it is at least as likely as not (50 percent or greater probability) that the disorder had its onset during or is otherwise related to any disease or injury in the Veteran's service, including due to conceded exposure to herbicide agents in Vietnam. A complete and fully explanatory rationale must be provided for any opinion offered. 4. Schedule the Veteran for a VA hearing loss and tinnitus examination. The examiner should review the entire claims file, and the report of examination should include discussion of the Veteran's documented history and assertions. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner should identify whether the Veteran has a current diagnosis of tinnitus, in light of the conflicting evidence between negative statements at the Veteran's July 2017 VA examination and positive statements previously made in the course of seeking medical treatment. If it is determined that the Veteran has a current diagnosis of tinnitus, the examiner should address whether it is at least as likely as not that tinnitus was caused by or incurred in service or is the result of his service-connected hearing loss. A complete and fully explanatory rationale must be provided for any opinion offered. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.