Citation Nr: 21010046 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-00 515 DATE: February 24, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for peripheral neuropathy of the upper left extremity is granted. New and material evidence having been received, the application to reopen the claim for service connection for peripheral neuropathy of the lower left extremity is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the upper left extremity, to include as secondary to service-connected back, left knee, left elbow, and left wrist disabilities, is remanded. Entitlement to service connection for peripheral neuropathy of the lower left extremity, to include as secondary to service-connected back disability, is remanded. Entitlement to a rating in excess of 10 percent for bursitis/tendinitis of the left elbow is remanded. FINDINGS OF FACT 1. In a final rating decision issued in May 2011, the Agency of Original Jurisdiction (AOJ) denied service connection for peripheral neuropathy of the left upper and lower extremities. 2. Evidence added to the record since the final May 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for peripheral neuropathy of the left upper and lower extremities. CONCLUSIONS OF LAW 1. The May 2011 rating decision that denied service connection for peripheral neuropathy of the left upper and lower extremities is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for peripheral neuropathy of the left upper extremity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has been received to reopen a claim of entitlement to service connection for peripheral neuropathy of the left lower extremity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1984 to January 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in September 2014 and October 2014 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, he waived AOJ consideration of the evidence associated with the record since the issuance of the December 2016 statement of the case. 38 C.F.R. § 20.1305(c). The undersigned also held the record open for 30 days for the submission of additional evidence, which was received in January 2021. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for peripheral neuropathy of the left upper extremity. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for peripheral neuropathy of the left lower extremity. By way of background, VA received the Veteran’s original claim for service connection for peripheral neuropathy of the left upper and lower extremities in September 2010. In a May 2011 rating decision, the AOJ considered the Veteran’s service treatment records, post-service treatment records, and November 2010 VA examinations. In this regard, the AOJ observed that the Veteran’s service treatment records were negative for any indication of such disorders and, while post-service treatment records included a 2009 electromyography (EMG) demonstrating bilateral carpal tunnel syndrome and idiopathic polyneuropathy of the lower extremities and a May 2010 private treatment record reflecting a diagnosis of lumbar radiculopathy, November 2010 VA spine and peripheral neuropathy examinations found that the Veteran had idiopathic polyneuropathy affecting his bilateral upper and lower extremities that was unrelated to his military service or his service-connected back, left elbow, and left wrist disabilities. Later that month, the Veteran was advised of the decision and of his appellate rights, but he did not enter a notice of disagreement with such decision. Additionally, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision, and no relevant service department records have since been received. Therefore, the May 2011 rating decision is final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 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 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence associated with the record since the issuance of the May 2011 rating decision includes the Veteran’s testimony at the December 2020 Board hearing, which is presumed credible for the purpose of reopening his claims, that his peripheral neuropathy symptoms began after he sustained the injuries that resulted in his service-connected back and left wrist disabilities in service, but any related symptoms reported at that time were attributed to his left wrist and back orthopedic disabilities and not independently assessed, and he performed duties, to include typing, that required repetitive motion of the wrists. Further, while an August 2014 VA examiner opined that the Veteran’s diagnosed idiopathic peripheral neuropathy of the upper and lower extremities is distinct and unrelated to or aggravated by his service-connected back, left knee, and left wrist disabilities, a September 2016 VA examination reflects a finding of lumbar radiculopathy affecting the sciatic nerve of the left lower extremity and a December 2020 statement from the Veteran’s treating chiropractor reveals that he experiences neuro-radicular pain into his lower extremities as a result of his back and left knee disabilities. Consequently, as such claims were previously denied based on the lack of evidence demonstrating a relationship between the Veteran’s currently diagnosed peripheral neuropathy of the left upper and lower extremities and his military service or a service-connected disability, and the newly received evidence suggests such relationships, the Board finds that the evidence added to the record since the final May 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims of entitlement to service connection for peripheral neuropathy of the left upper and lower extremities. Thus, as new and material evidence has been received, such claims are reopened. REASONS FOR REMAND 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as secondary to service-connected back, left knee, left elbow, and left wrist disabilities. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as secondary to service-connected back disability. As previously noted, the Veteran contends that his peripheral neuropathy of the left upper and lower extremities had its onset during his military service as a result of injuries to his back and left wrist, or due to his duties that required repetitive motions of the wrist, or, in the alternative, is secondary to service-connected back, left knee, left elbow, and left wrist disabilities. He further states that, to the extent that his peripheral neuropathy had been suggested to be related to alcohol use, he never abused alcohol and his treatment records likewise fail to indicate a history of alcohol abuse. In this regard, the Veteran reports an injury to his back during service when he fell and pulled something physical training, at which time he experienced radiating pain down his left lower extremity. He further describes an injury to the left elbow and wrist when he slipped going down a ladder aboard ship, at which time he experienced pain in the arm and hand. The Veteran also reports that he performed duties, to include typing, that required repetitive motion of the wrists. Additionally, an October 2000 VA treatment record reflects the Veteran’s report that, when he injured his left knee and back when playing basketball, he experienced ongoing pain symptoms in the left hip that radiated across the lower back and down the right leg. Further, the Veteran is service-connected for back, left knee, left elbow, and left wrist disabilities. Post-service VA treatment records reflect that a January 2001 EMG showed minimal peroneal neuropathy with no definite evidence of radiculopathy. In January 2009, an EMG was noted to reflect bilateral carpal tunnel syndrome and peripheral neuropathy and, in April 2019, an EMG was negative for radiculopathy or neuropathy. A May 2010 private treatment record reflects an assessment of degenerative disc disease and left lower extremity radiculopathy. At a November 2010 VA examination, it was noted that the Veteran reported tingling and numbness in his bilateral hands and feet that started two years and one year previously, respectively. Following a review of the record and an examination, the examiner, as relevant, diagnosed left-sided carpal tunnel syndrome secondary to the Veteran’s post-service jobs and idiopathic polyneuropathy affecting the bilateral upper and lower extremities, which had its onset recently and is unrelated to his military service. He further indicated that the Veteran’s neuropathy is idiopathic in origin, and unrelated to his back, left elbow, and left wrist disabilities. At an August 2014 VA examination, the Veteran reported that he began experiencing paresthesia in both legs in 2004 and in both hands soon thereafter, and an EMG revealed neuropathy without evidence of carpal tunnel syndrome. At such time, the examiner found that the Veteran’s peripheral neuropathy is toxic-metabolic in origin and, as such, is not due to, related to, or aggravated by his back or left wrist disability. However, a September 2016 VA examination reflects a finding of lumbar radiculopathy affecting the sciatic nerve of the left lower extremity and a December 2020 statement from the Veteran’s treating chiropractor reveals that he experiences neuro-radicular pain into his lower extremities as a result of his back and left knee disabilities. Therefore, in light of the Veteran’s recent report of in-service injuries to his back and left wrist and duties that required repetitive motion of the wrists, the conflicting evidence as to whether he has lumbar radiculopathy in addition to peripheral neuropathy, and the lack of a detailed rationale as to whether his peripheral neuropathy is caused or aggravated by his service-connected disabilities, the Board finds that a remand is necessary in order to obtain an addendum opinion address the etiology of his peripheral neuropathy of the left upper and lower extremities. 5. Entitlement to a rating in excess of 10 percent for bursitis/tendinitis of the left elbow. The September 2014 rating decision denied a rating in excess of 10 percent for bursitis/tendinitis of the left elbow and, in October 2014, the Veteran entered a notice of disagreement as to such denial. However, the December 2016 statement of the case did not address such issue. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this remand, to an appropriate examiner in order to address the etiology of the Veteran’s peripheral neuropathy of the left upper and lower extremities. The need for an additional examination is left to the discretion of the clinician offering the opinion. Following a review of the record, the examiner should address the below inquiries: (A) Identify all neurological disorders of the left upper and lower extremities, to include peripheral neuropathy. In this regard, the examiner should specifically indicate whether the Veteran has lumbar radiculopathy of the left lower extremity. In this regard, please address the discrepancy between the findings of record that the Veteran does not have lumbar radiculopathy and the May 2010 private orthopedist’s notation of positive left straight leg raising (SLR) tests and diagnosis of left lumbar radiculopathy; September 2016 VA examination report noting positive SLR testing and a diagnosis of bilateral lumbar radiculopathy; and the December 2020 letter from the Veteran’s treating chiropractor stating that his chronic back and knee conditions have created “neuro-radicular pain” in his bilateral lower extremities. (B) For each neurological disorder found to be present, to include peripheral neuropathy, is it at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include his reported in-service injuries to his back and left wrist and/or his duties that required repetitive motion of the wrists? In offering this opinion, the examiner should consider the Veteran’s varying reports that his symptoms began during service, in 2004, and in 2008/2009. (C) For each neurological disorder found to be present, to include peripheral neuropathy, is it at least as likely as not (i.e., a 50 percent or greater probability) that such is caused or aggravated by the Veteran’s back, left knee, left elbow, and/or left wrist disability? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering the foregoing opinions, the examiner is advised that the Veteran reports that he never abused alcohol and his treatment records likewise fail to indicate a history of alcohol abuse. A rationale for any opinion offered should be provided. 2. Provide the Veteran and his representative with a statement of the case regarding the issue of entitlement to rating in excess of 10 percent for bursitis/tendinitis of the left elbow. Advise them of the time period in which to perfect an appeal to the Board. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Northcutt, 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.