Citation Nr: 21075787 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-14 166 DATE: December 21, 2021 ORDER The petition to reopen a previously denied claim for bilateral upper extremity peripheral neuropathy is granted. Service connection for bilateral upper extremity peripheral neuropathy is granted. FINDINGS OF FACT 1. In an unappealed July 2009 rating decision, the RO denied the Veteran's claim for service connection for right and left upper extremity peripheral neuropathy. 2. The evidence received since the July 2009 rating decision raises a reasonable possibility for substantiating service connection for bilateral upper extremity peripheral neuropathy. 3. Symptoms of the bilateral upper extremity peripheral neuropathy had their onset during service and have been continuous since separation from service. CONCLUSIONS OF LAW 1. The July 2009 rating decision denying service connection for bilateral upper extremity peripheral neuropathy is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103. 2. The evidence received since the July 2009 rating decision is new and material, and the criteria to reopen the service connection claim for bilateral upper extremity peripheral neuropathy are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria to establish service connection for bilateral upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to October 1969, to include service in the republic of Vietnam. In August 2021, the Veteran and his spouse testified in a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Procedural History In October 2007, VA received the Veteran's original service connection claim for bilateral upper and lower extremity peripheral neuropathy. These claims were denied by an April 2008 rating decision. The Veteran timely appealed the decision in November 2008 and a statement of the case (SOC) was issued in July 2009. For reasons unclear to the Board, the RO issued on the same day of the SOC also a rating decision that denied both claims. Thereafter, in September 2009, the Veteran submitted a VA Form 9, substantive appeal, in which he perfected his appeal only for the issue of bilateral lower extremity peripheral neuropathy. In March 2011, the Veteran submitted a statement in support of claim asking that his bilateral upper and lower extremity peripheral neuropathy examination will be at the local VAMC. This statement was interpreted by the Board's March 2012 remand of the issue of bilateral lower extremity peripheral neuropathy as a petition to reopen a claim for service connection for bilateral upper extremity peripheral neuropathy. The Board referred this issue to the RO; however, it was not adjudicated. In an October 2015 rating decision, the Board granted service connection for bilateral lower extremity peripheral neuropathy. In January 2016, the Veteran filed a formal petition to reopen a previously denied claim for service connection for bilateral upper extremity peripheral neuropathy. The RO reopened and denied the claim in a March 2016 rating decision, the Veteran timely appealed the decision in April 2016, a SOC was issued in February 2018, the Veteran timely perfected his appeal later this month and this appeal ensued. New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2020). If the Board issues a decision on appeal, confirming the RO's decision, then the Board's decision subsumes the RO's decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record 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 evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Based on the aforementioned procedural history, the last final decision in this case is the July 2009 rating decision. The Veteran did not appeal this decision within the allotted time period, and it became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Evidence received since that time included the Veteran's August 2021 testimony regarding the onset of his symptoms. This evidence is considered new and material and the petition to reopen a claim for bilateral upper extremity peripheral neuropathy is granted. Service Connection for Bilateral Upper Extremity Peripheral Neuropathy Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specific disabilities associated with exposure to herbicide agents, including early-onset peripheral neuropathy. 38 C.F.R. § 3.309(e). These disabilities will be considered to have been incurred in or aggravated by service despite any lack of evidence of such disease during service. 38 C.F.R. § 3.307(a). This presumption applies to veterans who served in the Republic of Vietnam during January 9, 1962 to May 7, 1975, even if there is no record of evidence of such disease during the period of service. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). While early-onset peripheral neuropathy is included among the list of diseases VA associates with herbicide agent exposure, 38 C.F.R. § 3.307(a)(6)(ii) requires that early-onset peripheral neuropathy manifest itself to a degree of 10 percent or more within one year after the last date on which the veteran was exposed to an herbicide agent during active service. See also 78 Fed. Reg. 54763-01 (Sept. 6, 2013). The Veteran asserts that the currently diagnosed right and left upper extremity peripheral neuropathy is related to the recognized exposure to herbicide agents in Vietnam. The Veteran has a current diagnosis of bilateral upper extremity peripheral neuropathy. See e.g., VA treatment records throughout the pendency of the claim. On review, the Board resolves all doubt in the Veteran's favor in finding that symptoms of the now diagnosed bilateral upper extremity peripheral neuropathy had their onset during active duty service and have been continuous since separation from service. The Veteran's service treatment records are silent for any complaints, treatment, or diagnosis of right and/or left upper extremity peripheral neuropathy. Post-service treatment records as early as 2004 noted complaints and treatment for numbness and tingling in both hands and arms. Throughout the pendency of the appeal, the Veteran stated that the tingling and numbness of both hands began during service or shortly after. He further testified during the 2021 hearing that although he had tingling and numbness at the time of discharge, as a twenty-two years old, he was not bothered by it. It was later on in life when the condition worsened. Furthermore, treatment records between 2012 and 2014 noted reports of numbness and tingling for over twenty-five years. Here, the Board assigns considerable probative weight to the Veteran's lay reports because he can accurately recall what he observed, and the observed symptoms are consistent with the same symptoms later diagnosed as peripheral neuropathy. Further, the Board finds that these lay accounts are internally consistent and facially plausible. Through this evidence, the onset of the Veteran's complaints of symptomatology of early-onset upper extremity peripheral neuropathy is established and the continuity of this symptomatology is reported credibly. The Board recognizes that that there are significant gaps in the medical evidence of record as to the ongoing nature of the Veteran's upper extremity peripheral neuropathy. However, as reflected above, the Board assigns significant probative weight to the competent, consistent, and credible lay evidence provided by the Veteran. The Board finds that the evidence of record as to onset during service, or shortly after service, with continuity after service is in relative equipoise. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran is entitled to service connection for early-onset upper extremity peripheral neuropathy on a presumptive basis. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.