Citation Nr: 21076919 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-02 487 DATE: December 28, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for peripheral neuropathy of the upper and lower extremities is reopened, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for peripheral neuropathy of the upper and lower extremities is remanded. FINDINGS OF FACT 1. A September 2011 rating decision denied the Veteran's claim for service connection for acute and subacute peripheral neuropathy; the Veteran did not appeal this decision, and it became final. 2. The evidence associated with the claims file following the September 2011 rating decision is new and material to the Veteran's claim for service connection for peripheral neuropathy. CONCLUSIONS OF LAW 1. The September 2011 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.160. 2. New and material evidence has been received to reopen the claim for service connection for peripheral neuropathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from November 1973 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This appeal originally included claims for service connection for bilateral hearing loss as well as scars to the left and right sides of the face. However, these claims were granted during the pendency of the appeal, and as such, there remains no case or controversy concerning entitlement to benefits for these claims. Therefore, these appeals are no longer before the Board. The Veteran testified before the undersigned Veterans Law Judge at a September 2021 videoconference hearing, and a transcript of this hearing has been associated with the claims file. 1. New and material evidence having been received, the claim for entitlement to service connection for peripheral neuropathy of the upper and lower extremities is reopened, and the appeal is granted to this extent only. The Veteran's claims for service connection for acute and subacute peripheral neuropathy was denied in a September 2011 rating decision. The Veteran did not appeal this decision and it became final. The Veteran filed a claim to reopen his service connection claim for peripheral neuropathy in February 2016. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran's claim for service connection for peripheral neuropathy was originally denied in September 2011 on the basis that the evidence did not show any event, disease, or injury in service that would have caused the Veteran's peripheral neuropathy, nor did the condition occur during the Veteran's service. In connection with the Veteran's claim to reopen, he submitted a July 2016 treatment note in May 2017 in which a physician from the Mayo Clinic evaluated his condition and found that there was no clear cause for the Veteran's peripheral neuropathy, although it was possible that his in-service chemical exposure could be a potential cause. The Veteran also testified during the September 2021 hearing that he was exposed to diesel fumes as a part of his time working in the motor pool during service, and a physician from the Mayo Clinic as well as another of his private treating physicians suggested to him that there was a connection between his fume exposure and his peripheral neuropathy. He also submitted a November 2021 written statement as well as private treatment notes indicating there may be a relationship between his service-connected PTSD and his peripheral neuropathy. Therefore, the Board finds that new and material evidence has been received sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities is remanded. The Veteran contends that his peripheral neuropathy is either due to his exposure to diesel fuel fumes as part of his time working in the motor pool or is otherwise due to or aggravated by his service-connection posttraumatic stress disorder (PTSD). The Board notes that the Veteran has not been provided a VA examination for his peripheral neuropathy. During his September 2021 hearing testimony, the Veteran explained that he was around diesel fumes in enclosed spaces as a part of his time working in the motor pool, which at times was so full of diesel fumes that it was hard for him to breathe. Additionally, although his peripheral neuropathy started around six to eight years after he separated from service, a physician from the Mayo Clinic stated that it was possible that the Veteran's condition was related to his in-service chemical exposure. The Veteran also stated that another one of his private physicians also suggested his condition was related to chemical exposure. In November 2021, the Veteran submitted a written statement where he contends that his peripheral neuropathy may be due to his PTSD, saying that his private physicians have indicated a connection between the conditions. Additionally, the Veteran submitted private treatment notes in November 2021 in which the treating physician referenced a potential connection between the Veteran's neuropathy, his chronic pain, and his PTSD. Medical articles discussing the effects of PTSD on chronic pain and similar conditions were submitted along with these treatment notes. After reviewing the record, the Board finds that remand is required to obtain a VA examination. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims indicated that there was a four-part test to determine whether an examination was necessary under 38 C.F.R. § 3.159(c)(4). Id. at 81. Under this test, VA will provide a medical examination or obtain a medical opinion where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence to make a decision on the claim. Id.; see also 38 C.F.R. § 3.159(c)(4). Here, the Veteran has a current diagnosis of peripheral neuropathy, and he was exposed to diesel fumes during his service. Additionally, the evidence indicates a potential connection between the Veteran's exposure to diesel fumes during service and his peripheral neuropathy, and a connection between his service-connected PTSD and his peripheral neuropathy. However, while the evidence indicates a potential relationship between the Veteran's service or service-connected disability and his peripheral neuropathy, the statements from private physicians referring to a potential connection between his condition and chemical exposure or his PTSD are insufficient because these opinions do not use the correct standard of "at least as likely as not" or provide sufficient rationale when discussing these nexuses. As such, the Board finds that additional information is needed in order to determine whether the Veteran's peripheral neuropathy is due to either his in-service diesel fuel exposure or is related to his service-connected PTSD. Thus, a remand is warranted to obtain an examination addressing these issues. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for an examination with a qualified examiner to determine the nature and etiology of the Veteran's peripheral neuropathy. The examiner must thoroughly review the entire claims file, to include a copy of this remand, and must provide thoroughly reasoned responses to each of the following: (a.) Whether the Veteran's peripheral neuropathy is at least as likely as not (a 50 percent probability or greater) due to or otherwise related to his service, to include exposure to diesel fumes during his time working in the motor pool. (b.) Whether it is at least as likely as not that the Veteran's peripheral neuropathy is proximately due to his service-connected PTSD. (c.) Whether it is at least as likely as not that the Veteran's peripheral neuropathy is aggravated by his service-connected PTSD A thorough and complete rationale for all opinions provided is required. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.