Citation Nr: 21009067 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-54 321 DATE: February 18, 2021 ORDER The petition to reopen a previously denied claim for entitlement to service connection for peripheral neuropathy of the right and left lower extremities is denied. FINDING OF FACT An unappealed January 2014 rating decision denied service connection for peripheral neuropathy of the right and left lower extremities; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is cumulative or redundant and does not relate to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The January 2014 rating decision denying the claim for service connection for peripheral neuropathy of the right and left lower extremities is final; and new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1966 to September 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veteran’s Appeals (Board on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. The VLJ held the record open for 90 days for the submission of nexus-type evidence in support of the appeal. To date, no additional evidence has been received. The petition to reopen a previously denied claim for entitlement to service connection for peripheral neuropathy of the right and left lower extremities is denied. The Veteran contends that he has peripheral neuropathy of his lower extremities due to or a result of herbicide agent and chemical exposures, including TNT, during his active service. See Hearing Transcript (October 2020). At his Board hearing, the Veteran testified that the claimed condition did not begin during his active service and that he first obtained treatment around 2005, decades after his active duty service. The Board concludes that a January 2014 rating decision denying the claim for service connection for peripheral neuropathy of the right and left lower extremities is final; and that new and material evidence has not been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary 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. 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). Regardless of whether the agency of original jurisdiction (AOJ) found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Lastly, unless new and material evidence has been submitted, the duty to assist does not attach. Anderson v. Brown, 9 Vet. App. 542 (1996). Here, a review of the record reflect that VA received an original VA disability claim in February 2007 from the Veteran, wherein he claimed prostate cancer and brain tumors along with neck lesions related to herbicide agent exposure in service. See VA Form 21-526 (February 2007). Thereafter, VA received in August 2012 a claim for service connection for peripheral neuropathy. See VA Form 21-526 (August 2012). A January 2014 rating decision denied service connection for peripheral neuropathy of the right and left lower extremities, finding that there was no relationship between any current condition and service. A January 2014 VA letter notified the Veteran of this decision and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the January 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. VA received in December 2014 the Veteran’s claim to reopen these matters. See VA Form 21-526b (December 2014) At the time of the January 2014 rating decision, the prior final disallowance, the evidence of record included service treatment records (STRs), VA outpatient treatment records, and an October 2013 VA peripheral nerves examination. The medical evidence of record at this time does show that neuropathy had its onset in service, within one year after service, or that it was etiologically related to in-service injury or disease. For example, the Veteran’s STRs reflect normal clinical evaluation of the lower extremities and neurological system on service separation in August 1969. Post service treatment records reflect findings for abnormal nerve pathology of the both extremities decades after the Veteran’s service discharge. An August 2012 VA treatment note shows that the Veteran was evaluated by neurology and found to have hereditary axonal neuropathy and lumbar radiculopathy secondary to spinal stenosis. An October 2013 VA examination report shows a diagnosis for hereditary axonal neuropathy along with lumbar radiculopathy (from spinal stenosis). Since the January 2014 decision, lay and medical evidence has been received to include sworn testimony of the Veteran, additional VA records, private treatment records from Dartmouth-Hitchcock Medical Center, and the federal records of the Social Security Administration (SSA). This evidence is not new and material. Again, VA outpatient treatment records show that the Veteran has been treated for a peripheral nerve condition of the bilateral lower extremities, which has been attributed to hereditary axonal neuropathy and lumbar radiculopathy secondary to nonservice-connected spinal stenosis. None of the medical evidence received tends to show that the Veteran’s peripheral neuropathy began in service, manifested within one year after service, or is otherwise related to any in-service injury or disease, to include exposure herbicide agents or chemicals. The Veteran testimony is not new and material as it is largely redundant of his reports of causation at the time of the prior final disallowance. The appeal record was held open to allow the Veteran to obtain medical evidence supporting his theory of causation; however, none has been received. Overall, a collective review of the medical and lay evidence since the final prior denial does not reveal competent evidence of (1) an onset of any left knee or left shoulder disability in service, (2) osteoarthritis of the left knee manifesting to a compensable degree within the presumptive period following separation from service, or (3) either disability otherwise being etiologically related to and in-service injury or disease. In sum, the recent evidentiary submissions do not cure any prior evidentiary defect. Therefore, the Board finds that new and material evidence has not been submitted to reopen the claim for service connection for peripheral neuropathy of the right or left lower extremity. Accordingly, the petitions to reopen the previously denied claims are denied. See 38 C.F.R. § 3.156(a). The benefit of the doubt doctrine is not applicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Board notes that the Veteran may file another claim under the modernized appeal system that became effective in February 2019, which has eliminated the requirement for “new and material evidence” and only requires “new and relevant evidence” (a significantly lower threshold) to readjudicate the matters. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.