Citation Nr: 21074705 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 15-10 822 DATE: December 16, 2021 ORDER 1. New and material evidence having been received, the petition to reopen the previously denied claim for entitlement to service connection for right lower extremity peripheral neuropathy is granted. 2. Entitlement to service connection for right lower extremity peripheral neuropathy is denied. FINDING OF FACT 1. An unappealed June 2011 rating decision denied entitlement to service connection for right lower extremity peripheral neuropathy. 2. Evidence added to the record since the June 2011 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with the previous evidence of record, relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for right lower extremity peripheral neuropathy. 3. Right lower extremity peripheral neuropathy did not have its initial onset in service or within one year of discharge, is not secondary to any service-connected disabilities, to include bilateral knee disabilities, and is not otherwise related to an in-service injury or disease CONCLUSION OF LAW 1. The June 2011 rating decision that denied entitlement to service connection for right lower extremity peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The previously denied claim for entitlement to service connection for right lower extremity peripheral neuropathy is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection for right lower extremity peripheral neuropathy due to service or service-connected bilateral knee disabilities are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from July 1981 to October 1981. This matter comes to the Board of Veterans' Appeals (the Board) following an October 2014 rating decision in which the Agency of Original Jurisdiction (AOJ) continued its denial of entitlement to service connection for right lower extremity peripheral neuropathy, which was initially denied in June 2011. In her March 2015 VA Form 9, the Veteran requested the opportunity to participate in a videoconference hearing before a Veterans Law Judge. However, in November 2017, the Veteran, through her former authorized representative, withdrew her request for a hearing. This appeal was most recently before the Board in October 2018 when it was remanded to obtain a medical opinion regarding the nature and etiology of the Veteran's right lower extremity peripheral neuropathy. A VA examination and medical opinion were obtained in June 2021, and the matter has now returned to the Board for adjudication. I. Petition to Reopen Irrespective of the AOJ's actions, it is the Board's responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 8 Vet. App. 1, 4 (1995). Generally, an unappealed rating decision is final with the exception that a claim may be reopened by the submission of new and material evidence. When a veteran seeks to reopen a claim based on new and material evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must then evaluate the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In determining whether the evidence presented since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993). "New" evidence refers to evidence that was not previously submitted to VA decisionmakers. Evidence is "material" if it, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). In order to reopen a claim, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In a June 2011 rating decision, the AOJ denied entitlement to service connection for right lower extremity peripheral neuropathy, determining that there was no nexus between the Veteran's active service and her current right lower extremity peripheral neuropathy. Although the Veteran's former representative submitted a statement regarding the June 2011 rating decision within one year of that decision, he specifically stated that this statement was not a Notice of Disagreement. Accordingly, the Veteran did not file an appeal as to the issue of entitlement to service connection for right lower extremity peripheral neuropathy. There was also no new, relevant evidence received within one year of the June 2011 rating decision. The Veteran does not argue the contrary. Accordingly, the June 2011 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Since the June 2011 rating decision, VA has received the following evidence: (1) various VA and private treatment records, (2) a June 2013 lay statement from J.K., (3) a medical article regarding the relationship between arthritis and diabetes, and (4) the June 2021 VA examination and medical opinion. This evidence is new, as it was not previously before VA at the time of the AOJ's June 2011 denial. Moreover, this evidenceparticularly the medical article submitted by the Veteranis material. This evidence suggests a relationship between the Veteran's arthritis and the diabetes that caused her right lower extremity peripheral neuropathy. As such, it raises a reasonable possibility of substantiating the Veteran's claim that her current right lower extremity peripheral neuropathy is linked to a service-connected condition. Accordingly, the previously denied claim for entitlement to service connection for right lower extremity peripheral neuropathy is reopened. II. Service Connection The Veteran contends that her right lower extremity peripheral neuropathy is secondary to her service-connected bilateral knee disabilities. Specifically, she asserts that her service-connected bilateral knee disabilities, to include arthritis, contributed to her diabetes, which then caused her right lower extremity peripheral neuropathy. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted on a secondary basis for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases, such as peripheral neuropathy, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). While the Veteran has not specifically contended that she is entitled to service connection on a direct basis, the Board has nevertheless considered this theory of entitlement and found that it is not warranted here. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). At the outset, the first element of direct service connection has been met. VA treatment records show that the Veteran has been diagnosed with diabetic peripheral neuropathy, and the June 2021 VA examination shows a diagnosis of bilateral neuropathy of the lower extremities. See Shedden, 381 F.3d at 1166-67. The second element is not satisfied, however. The evidence of record shows that the Veteran's peripheral neuropathy did not begin during active service. Service treatment records are silent for complaints of neuropathy. Instead, VA treatment records show that the earliest complaints of neuropathy occurred in October 2004, decades after her separation from service. Nor has the Veteran identified an in-service event, injury, illness, or disease that she believes caused her peripheral neuropathy. As such, the preponderance of the evidence shows that there is no in-service incurrence or aggravation of a disease or injury, and direct service connection must be denied. See Shedden, 381 F.3d at 1166-67. Turning to secondary service connection, the question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progression by, a service-connected disability. For the reasons to follow, however, the preponderance of the evidence is against finding that the Veteran's right lower extremity peripheral neuropathy is proximately due to or the result of, or aggravated beyond its natural progression by, a service-connected disability, including bilateral knee disabilities. 38 U.S.C. § 1131; 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). At the outset, the Board notes that the Veteran is not service connected for diabetes, nor has she ever submitted a claim for this condition. Rather, she asserts that her service-connected arthritis contributed to her diabetes, which then caused her right lower extremity peripheral neuropathy. The June 2021 examiner opined that the Veteran's right lower extremity peripheral neuropathy was less likely than not caused or aggravated by her service-connected bilateral knee disabilities. She considered the Veteran's contention that her bilateral knee disabilities, including arthritis, contributed to the diabetes that caused her neuropathy. However, she opined that arthritis does not cause diabetes, nor does it cause diabetes to worsen. Moreover, she stated that neuropathy is a well-known consequence of diabetes, not arthritis. In sum, the examiner concluded that while the Veteran's right lower extremity neuropathy is a consequence of her diabetes, neither condition was caused or aggravated by her arthritis and/or other knee disabilities. The examiner's opinion is probative, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Furthermore, the examiner's opinion is supported by the Veteran's VA treatment records. The evidence shows that the Veteran's physicians have diagnosed her with peripheral neuropathy due to diabetes; there is no mention of the Veteran's arthritis or other bilateral knee disabilities causing or aggravating either her diabetes or right lower extremity peripheral neuropathy. While the Veteran believes that her right lower extremity neuropathy is proximately due to or the result of or aggravated beyond its natural progression by her service-connected bilateral knee disabilities, she is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran here, as the record does not show that she has the skills or medical training to make such a determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board assigns more probative weight to the competent medical evidence of record. The Board also acknowledges that the Veteran submitted medical treatise excerpts in support of her claim for secondary service connection. This article reports that over half of those diagnosed with diabetes also have arthritis and that "[c]ontrolling arthritis is critical to diabetes management and vice versa." However, the United States Court of Appeals for Veterans Claims has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. See Wallin v. West, 11 Vet. App. 509, 514 (1998). As the article submitted by the Veteran is general and speculative as to the connection between arthritis and diabetes, the Board affords it little probative value. Finally, the Board again notes that peripheral neuropathy is a chronic condition for which presumptive service connection may be granted. See 38 U.S.C. § 1110; 1112(a)(1); 38 C.F.R. § 3.309(a). However, this condition was not shown as chronic in service, did not manifest to a compensable degree within one year of her separation from service, and was not noted in service with attributable continuity of symptomatology. As discussed above, the Veteran did not complain of neuropathy until 2004, decades after her separation from service. Moreover, the Veteran does not contend, and the evidence does not show, that her right lower extremity peripheral neuropathy manifested within one year of her separation from active service and was continuous thereafter. In light of this, presumptive service connection for right lower extremity peripheral neuropathy is not warranted. 38 U.S.C. §§ 1110, 1112(a)(1); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As there is no evidence of a diagnosis of right lower extremity peripheral neuropathy during service or within one year of separation, continuity of symptomatology, an in-service event, injury, or disease, or a nexus between the Veteran's right lower extremity peripheral neuropathy and her service-connected bilateral knee disabilities, the preponderance of the evidence is against the Veteran's claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim must therefore be denied. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.