Citation Nr: 21014453 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-45 555 DATE: March 12, 2021 ORDER New and material evidence has been received as sufficient to reopen the claim for service connection for mitral valve regurgitation is granted. New and material evidence has been received as sufficient to reopen the claim for service connection for peripheral neuropathy of the bilateral feet and left leg is granted. REMANDED Entitlement to service connection for a heart disability, claimed as mitral valve regurgitation is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral feet and left leg is remanded. Entitlement to service connection for peripheral neuropathy of the left hand is remanded. Entitlement to service connection for peripheral neuropathy of the right hand is remanded Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to service connection for acoustic neuroma, claimed as a brain tumor is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. An August 2014 RO decision that denied service connection for mitral valve regurgitation as well as peripheral neuropathy of the bilateral feet and left leg was not appealed and the decision became final. 2. Evidence received since the August 2014 rating decision is new and material, and raises a reasonable possibility of substantiating the claim of entitlements to service connection for mitral valve regurgitation as well as peripheral neuropathy of the bilateral feet and left leg. CONCLUSIONS OF LAW 1. The August 2014 rating decision that denied the claim of entitlement to service connection for mitral valve regurgitation is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. The criteria to reopen the service connection claim for mitral valve regurgitation have been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. 3. The August 2014 rating decision that denied the claim of entitlement to service connection for peripheral neuropathy of the bilateral feet and left leg is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 4. The criteria to reopen the service connection claim for peripheral neuropathy of the bilateral feet and left leg have been met. 38 U.S.C. §§ 5103, 5103A, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, had Naval Reserves service from September 1995 to September 2003 with confirmed periods of active duty for training (ACDUTRA) from May 5, 1999 to May 21, 1999, and from March 4, 2000 to March 24, 2000. In August 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. Service Connection 1. New and material evidence has been received as sufficient to reopen the claim for service connection for mitral valve regurgitation as well as peripheral neuropathy of the bilateral feet and left leg. The Veteran originally filed a claim for entitlement to service connection for a mitral valve regurgitation and as well as peripheral neuropathy of the bilateral feet and left leg in March 2014. The RO initially denied the claim in an August 2014 rating decision on the grounds that there was no nexus between the disabilities and service. The Veteran did not appeal this decision and it became final as to the evidence then of record, and is not subject to revision on the same bases. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 is defined as 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). In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the RO’s determination as to whether new and material evidence has been received, the Board has a jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.2d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). Accordingly, the Board must initially determine whether there is new and material evidence to reopen a claim of service connection. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The Veteran applied to reopen the claim in November 2016. She was subsequently advised in December 2016 of the evidence and information necessary to reopen the claim and was notified of the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought. See Kent v. Nicholson, 20 Vet. App. 1 (2006). A May 2017 rating decision denied reopening the Veteran’s claim because the evidence received continued to show no evidence of a nexus to service. Since the August 2014 rating decision, documents have been associated with the claims file that show a possible nexus between each issue and service. March 2017 VA examinations for the heart, peripheral neuropathy, and Gulf War conditions also provided evidence that could reasonably substantiate the claim. Furthermore, the Veteran provided testimony before the undersigned in August 2020 that discussed alternative theories of entitlement and also triggered VA’s duty to assist. A July 2019 private medical opinion for peripheral neuropathy symptoms also discussed a possible nexus to service. As these documents represent evidence not previously submitted to agency decision makers and relate to an unestablished fact necessary to substantiate the claim, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Service connection for a heart disability, claimed as mitral valve regurgitation is remanded. 2. Service connection for peripheral neuropathy of the bilateral feet and left leg is remanded. 3. Service connection for peripheral neuropathy of the left hand is remanded. 4. Service connection for peripheral neuropathy of the right hand is remanded 5. Service connection for a right shoulder disability is remanded. 6. Service connection for a left shoulder disability is remanded. 7. Service connection for a left elbow disability is remanded. 8. Service connection for a right elbow disability is remanded. 9. Service connection for insomnia is remanded. 10. Service connection for acoustic neuroma, claimed as a brain tumor is remanded. 11. Service connection for a low back disability is remanded. 12. Service connection for a neck disability is remanded. The March 2017 VA Gulf War General Medical Examination opinion is considered inadequate to the extent the VA examiner only considered whether the Veteran’s heart and peripheral neuropathy disabilities were considered an undiagnosed illness or medically unexplained chronic multi symptom illness. Addendum opinions should be obtained in order to consider direct service connection. Furthermore, the Board cannot make a fully-informed decision on the issues of a bilateral shoulder disability, bilateral elbow disability, insomnia, acoustic neuroma, low back disability, and a cervical spine disability. The private medical nexus opinions in the claims file do not contain any rationale to support the conclusions reached by the physicians. As a result, VA examinations and medical nexus opinions are necessary to determine whether the disabilities are related to service, including environmental or toxic exposure during her Southwest Asia service. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s heart disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including environmental or toxic exposure during her Southwest Asia service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of her in-service injury and symptoms as well as her post-service symptoms. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s bilateral upper and lower extremity peripheral neuropathy. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including environmental or toxic exposure during her Southwest Asia service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of her in-service injury and symptoms as well as her post-service symptoms. The examiner must also discuss the October 2017 and July 2019 and July 2020 opinions of J.H., MD 3. Schedule the Veteran for a VA examination for a bilateral shoulder disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including environmental or toxic exposure during her Southwest Asia service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of her in-service injury and symptoms as well as her post-service symptoms. 4. Schedule the Veteran for a VA examination for a bilateral elbow disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including environmental or toxic exposure during her Southwest Asia service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of her in-service injury and symptoms as well as her post-service symptoms. The examiner must also discuss the September 2016 report of D.R., D.C. 5. Schedule the Veteran for a VA examination for an acoustic neuroma, claimed as a brain tumor. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including environmental or toxic exposure during her Southwest Asia service? The examiner must discuss the September 2017 and July 2019 reports of M.M., MD and July 2020 report of R.K.deV., MD Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of her in-service injury and symptoms as well as her post-service symptoms. 6. Schedule the Veteran for a VA examination for a low back disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including environmental or toxic exposure during her Southwest Asia service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of her in-service injury and symptoms as well as her post-service symptoms. The examiner must also discuss the September 2016 report of D.R.,D.C. 7. Schedule the Veteran for a VA examination for a cervical spine disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including environmental or toxic exposure during her Southwest Asia service? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of her in-service injury and symptoms as well as her post-service symptoms. The examiner must also discuss the September 2016 report of D.R.,D.C. 8. Schedule the Veteran for a VA examination for insomnia. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service, including environmental or toxic exposure during her Southwest Asia service? Is the disability at least as likely as not proximately caused by a service-connected disability? Is the disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability? Provide a rationale to support the opinion(s). In providing the requested opinion, discuss the Veteran’s description of her in-service injury and symptoms as well as her post-service symptoms. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.