Citation Nr: 21016014 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 17-28 784 DATE: March 19, 2021 ORDER Reopening of a previously denied claim of service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure or exposure to contaminated water is Camp Lejeune, is granted. Reopening of a previously denied claim of service connection for peripheral neuropathy of the left upper extremity, to include as due to herbicide exposure or exposure to contaminated water at Camp Lejeune, is granted. Reopening of a previously denied claim of service connection for peripheral neuropathy of the right upper extremity, to include as due to herbicide exposure or exposure to contaminated water at Camp Lejeune, is granted. Reopening of a previously denied claim of service connection for peripheral neuropathy of the left lower extremity, to include as due to herbicide exposure or exposure to contaminated water at Camp Lejeune, is granted. REMANDED Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. FINDINGS OF FACT 1. Service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity was denied in a July 2013 rating decision on the grounds that no nexus to service was shown. The Veteran did not timely appeal. 2. Evidence received since July 2013 was not previously considered by agency decision makers, is not cumulative and redundant of evidence already of record, relates to an unestablished claim, and raises the reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The July 2013 rating decision denying service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the July 2013 rating decision in relation to the Veteran’s claims for entitlement to service connection for peripheral neuropathy of the right upper extremity, left upper extremity, right lower extremity, and left lower extremity is new and material, and therefore, the claim is reopened. 38 C.F.R. §§ 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1961 to November 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). This matter had previously been denied by the RO in July 2013. Although reopening was granted in the October 2016 rating decision, in a September 2019 Board decision, reopening was denied. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In May 2020, based on a Joint Motion for Remand (JMR), the Court remanded the issue, finding that the Board had misapplied the standard under 38 C.F.R. § 3.156(a). Accordingly, the matter is once again before the Board. In June 2018, the Veteran submitted a signed and dated RAMP opt-in election form. However, the Veteran made no selections on this form. Furthermore, neither the Veteran nor his representative have expressed any intention to withdraw from the Legacy appeals system since that time. As such, the Board will proceed with adjudication in the Legacy system. New and Material As noted previously, in the October 2016 decision on appeal, the RO reopened the previously denied claim and considered the merits in confirming and continuing the denials of service connection for peripheral neuropathy of the left upper extremity, right upper extremity, left lower extremity, and right lower extremity. However, irrespective of the RO’s action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 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. 38C.F.R. §3.156(a). As per the Court, a March 2016 statement by the Veteran’s treating doctor, qualifies as new and material evidence and reopening is mandated. REASONS FOR REMAND In light of the reopening and evidence submitted since the Court decision, remand is required for further development. The Veteran has, through his representative, raised reopening of the previously denied and unappealed claim of service connection for monoclonal gammopathy of undetermined significance (MGUS), as he has argued that his neuropathies are secondary to MGUS. The October 2016 decision denied service connection for MGUS, finding no nexus to service. This decision was not appealed. In the Statement of the Cased (SOC) issued with regard to neuropathies, the RO cited medical findings relating MGUS to alcohol use, though such is not definitive and is not contained in the rating decision, which is quite conclusory. Nevertheless, the law of case demonstrates that MGUS is not currently service connected. As the alleged primary condition is not service-connected, no condition may be service-connected as secondary to it. Resolving all doubt in favor of the Veteran and in a liberal reading of the applicable law and regulations, however, the filing of the argument in January 2021 is found to be a communication reflecting an intent to file a claim, and gives rise to VA’s duty to supply the necessary claim forms. 38 C.F.R. §§ 3.150, 3.155. Clearly, the current appeal is inextricably intertwined with the newly raised claim for reopening. In the interest of judicial economy and to protect the Veteran’s due process rights and potential effective dates should a favorable decision be issued, the Board finds remand of the merits of the reopened claims is warranted. The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate claims forms and notice related to reopening of the claim for service connection of MGUS. 2. Then, schedule the Veteran for an appropriate VA examination to determine the etiology of his MGUS and peripheral neuropathies. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether it is at least as likely as not that peripheral neuropathy of the right and left upper and lower extremities is caused or aggravated by the Veteran’s exposure to herbicides (“Agent Orange”) in Vietnam and/or contaminants in the water at Camp Lejeune. If another etiology is more likely, such must be identified. The examiner must opine as to whether it is at least as likely as not that peripheral neuropathy of the right and left upper and lower extremities is caused or aggravated by MGUS. If another etiology is more likely, such must be identified. The examiner must opine as to whether it is at least as likely as not that MGUS is caused or aggravated by the Veteran’s exposure to herbicides (“Agent Orange”) in Vietnam and/or contaminants in the water at Camp Lejeune. If another etiology is more likely, such must be identified. Full and complete rationales are required for all opinions expressed. The January 2021 opinion of Dr. JS-M must be discussed in connection with the examination and opinions. 3. Following the above, readjudicate the issues on appeal. If any benefit sought remains denied, issue a supplemental statement of the case and, following appropriate period for response, return the case to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.