Citation Nr: 21072678 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 10-16 722 DATE: December 6, 2021 ORDER New and material evidence has been received and the claim of entitlement to service connection for peripheral neuropathy, to include myotonic dystrophy, is reopened. REMANDED Entitlement to service connection for bilateral peripheral neuropathy, to include myotonic dystrophy, is remanded. Entitlement to service connection for bilateral lens implantation due to cataracts is remanded. FINDING OF FACT 1. An appealed, but unperfected, February 1983 rating decision denied service connection for myotonic dystrophy. 2. Evidence received since the February 1983 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim for peripheral neuropathy, to include myotonic dystrophy. CONCLUSIONS OF LAW 1. The February 1983 rating decision denying the claim of service connection for myotonic dystrophy is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for peripheral neuropathy, to include myotonic dystrophy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1982 to July 1982, and in the United States Army from November 1983 to February 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in May 2017, June 2018 and September 2020. Finally, the Board has recharacterized the Veteran's claim for myotonic dystrophy as one for entitlement to service connection for peripheral neuropathy, to include myotonic dystrophy, to encompass all conditions reasonably contemplated by the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Whether new and material evidence has been received to reopen service connection for peripheral neuropathy, to include myotonic dystrophy. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 C.F.R. § 5108. "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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273 (1996). 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, 121 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead one should ask whether the evidence could reasonably substantiate the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Historically, an unappealed February 1983 rating decision denied the Veteran's claim for service connection for myotonic dystrophy based on a finding that the disability pre-existed service and was not aggravated therein. The Veteran appealed but did not perfect an appeal as to this rating decision. See August 1983 VA Form 21-4138 (withdrawing his appeal for service connection for myotonic dystrophy). Accordingly, the February 1983 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200, 20.202, 20.1103. The instant claim for service connection was received in October 2008. Since the February 1983 rating decision, the Veteran submitted additional evidence, including VA examinations in September 2019 and June 2021. See September 2019 VA eye conditions examination; see also June 2021 VA muscle injuries examination. This evidence is new, in that it was not previously of record at the time of the February 1983 rating decision. Additionally, the newly submitted evidence is not cumulative or redundant of evidence already of record. Given the standard set forth in Shade, outlined above, the Board finds that the additional evidence is new and material within the meaning of 38 C.F.R. § 3.156, warranting reopening of the claim of service connection for peripheral neuropathy, to include myotonic dystrophy. Additional development of this claim is required, which will be discussed in the remand portion of the decision below. REASONS FOR REMAND 2. Entitlement to service connection for peripheral neuropathy, to include myotonic dystrophy, is remanded. As previously noted, the Board previously remanded this issue in June 2018. Specifically, in the June 2018 Board remand, the Board requested that the examiner provide an opinion as to whether the Veteran's disability clearly and unmistakably pre-existed his active duty service and, if so, whether it was clearly and unmistakably not aggravated therein. In September 2019, the Veteran was afforded a VA examination. The examiner indicated that an aspect of the opinion (regarding the nature and etiology of the Veteran's myotonic dystrophy) was outside the scope of the examiner's practice area and should be addressed by a neurologist. In September 2020, the Board again remanded this issue for a VA examination administered by a neurologist. In June 2021, the examiner provided a negative nexus opinion. The examiner reasoned that based on available records, including the Veteran's most recent neurological assessment, the myotonic dystrophy diagnosis in service, while reasonable at the time, was made in error, without full consideration of all possible causes for Veteran's findings, and never verified or followed up to confirm. The diagnosis of myotonic dystrophy has never been confirmed in the record since his time in service. The Veteran does not currently manifest signs or symptoms of progressive weakness expected in myotonic dystrophy over time. See June 2021 VA muscle injuries examination. The June 2021 examiner diagnosed the Veteran with bilateral peripheral neuropathy of unclear etiology. The Veteran reported a history of tingling in both legs from hip down to toes that began around 17 years of age and that he feels has been slowly, progressively worsening. However, the examiner opined that the findings of the examination related to peripheral neuropathy of unknown etiology and not a muscle injury condition. The Board finds that clarity is needed regarding the nature and etiology of the Veteran's peripheral neuropathy. Specifically, there remains a question of the etiology of his diagnosed peripheral neuropathy and whether both upper and both lower extremities are encompassed in the June 2021 examiner's diagnosis. In light of the above, the Board finds that the Veteran should be afforded a new VA examination with the opportunity to obtain a responsive etiological opinion, following a thorough review of the record, as to his claim for service connection for bilateral peripheral neuropathy, to include myotonic dystrophy. 3. Entitlement to service connection for an eye condition, to include cataracts. The Veteran seeks service connection for an eye condition, to include bilateral lens implantation due to cataracts. As previously noted, the Board most recently remanded this issue for additional development in September 2020. Specifically, the Board remanded this issue for a new VA examination with respect to his cataracts. The Board notes, that when the RO attempted to schedule the Veteran's VA examination in compliance with the claim for service connection for bilateral lens implantation due to cataracts pursuant to the September 2020 Board Remand, the record indicates that the Veteran cancelled the examination. No reason or explanation was given for the examination cancellation. Due to the COVID-19 pandemic, the Veteran may have been understandably hesitant to appear for an in-person examination. This is supported by the fact that the record reflects that he has previously reported to scheduled VA examinations. Accordingly, the Board finds that remand for a new VA examination is required with respect to his cataracts. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician(s) to determine the nature, extent, onset, and etiology of his diagnosed peripheral neuropathy, to include myotonic dystrophy. The examiner must specify in the report that the Veteran's claims file was contemporaneously reviewed. All pertinent symptomatology and findings must be reported. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The Board notes that the Veteran has a diagnosis of peripheral neuropathy of unclear etiology that affects both sides. The examiner should then provide opinions to the following questions: (a) Please state whether the Veteran's diagnosed peripheral neuropathy applies to both the right and left upper extremities and the right and left lower extremities. (b) Is it at least as likely as not that the Veteran's peripheral neuropathy, wherever diagnosed, is etiologically related to the Veteran's period of active-duty service? A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate physician to determine the nature and etiology of his cataracts. The examiner must specify in the report that the Veteran's claims file was contemporaneously reviewed. All pertinent symptomatology and findings must be reported. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner should then provide opinions to the following questions: (a) Did the Veteran's cataracts clearly and unmistakably pre-exist his active duty? (b) If yes, were the Veteran's cataracts clearly and unmistakably NOT aggravated during his active duty? (c) If the Veteran's cataracts did not clearly and unmistakably pre-exist his active duty, the examiner must presume that the Veteran was sound upon entry into active duty. The examiner is then asked to opine as whether is it at least as likely as not that the Veteran's cataracts were incurred in or due to his active duty. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. In so doing, the examiner must discuss the Veteran's reported in-service exposure to gas while in a gas chamber, as well as his assertion that his exposure constitutes trauma causing his eye disability. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.