Citation Nr: 21024773 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-67 927 DATE: April 26, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for peripheral neuropathy is granted. Service connection for peripheral neuropathy, to include as due to exposure to herbicide agents is denied. FINDINGS OF FACT 1. In a December 2009 rating decision, the Agency of Original Jurisdiction (AOJ) continued its denial of service connection for peripheral neuropathy, to include as due to exposure to herbicide agents. Although the Veteran was notified of the decision and his appellate rights in a December 2009 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of notification of the decision. 2. The evidence received since the final December 2009 rating decision denying service connection for peripheral neuropathy, to include as due to exposure to herbicide agents, includes evidence which relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The weight of competent and credible evidence is against finding that peripheral neuropathy began during active service or is otherwise related to an in-service injury or disease, to include exposure to herbicide agents. CONCLUSIONS OF LAW 1. The December 2009 rating decision denying the claim of service connection for peripheral neuropathy is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. § 3.104, 20.302, 20.1103 (2009). 2. New and material evidence has been received to reopen the previously denied claim of service connection for peripheral neuropathy. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.104, 3.156, 3.159, 20.302 (2020). 3. The criteria for service connection for peripheral neuropathy are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army service from January 1969 to January 1971 including service in the Republic of Vietnam. He was awarded the Combat Infantryman Badge. These matters come before the Board of Veterans’ Appeals (Board) from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that reopened a previously denied claim of service connection for peripheral neuropathy and denied the underlying claim on the merits. The Veteran submitted a timely Notice of Disagreement (NOD) in September 2017. The AOJ issued a Statement of the Case in November 2017 continuing its denial, and the Veteran perfected his appeal by submitted a VA Form 9 in December 2017. The Veteran, his spouse, and his representative appeared in a December 2020 hearing. A transcript of that hearing has been associated with the record. 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for peripheral neuropathy In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening the claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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 related 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, to include by triggering the Secretary’s duty to assist. Id. at 118. The Veteran’s claim of service connection for peripheral neuropathy was most recently denied in a December 2009 rating decision. The RO denied the claim as peripheral neuropathy was not among the conditions warranting presumptive service connection, and as there was no evidence of it being caused by service. The Veteran was notified of this decision and his appellate rights in a December 2009 letter. The Veteran, however, did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the issuance of that decision. In February 2016, the Veteran submitted VA Form 21-0966 to inform his intent to file a claim, and in May 2017, he submitted a claim of service connection for bilateral upper and lower extremity peripheral neuropathy. The Veteran also submitted a private medical opinion that found “no specific definable cause” for his neuropathic issues and therefore attributed the Veteran’s peripheral neuropathy to “Agent Orange.” No other rationale was offered. The Veteran also submitted a fully developed claim in May 2017. Thus, since the last prior final decision in December 2009, additional evidence has been added to the record, as listed above. Specifically, the private practitioner’s opinion that the Veteran’s peripheral neuropathy was at least as likely as not caused by service, presents material evidence relating to an unestablished fact necessary to substantiate the claim. Therefore, new and material evidence has been received since the final rating decision and the prior final disallowance of the claim of service connection for peripheral neuropathy is re-opened. 2. Service connection for peripheral neuropathy, to include as due to exposure to herbicide agents The Veteran contends that his peripheral neuropathy began shortly after discharge. Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran’s service records document his service in the Republic of Vietnam during an applicable time period. Therefore, he is legally presumed to have been exposed to herbicides, absent evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. Diseases listed at 38 C.F.R. § 3.309(e) warrant service connection on a presumptive basis due to exposure to herbicides. See also 38 U.S.C. § 1116 and 68 Fed. Reg. 27,630-41 (May 20, 2003) (stating that the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted). Certain chronic diseases, including an organic disease of the nervous system such as peripheral neuropathy, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309. The option of establishing presumptive service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). The Federal Circuit has held that even if a veteran is found not to be entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). See also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran’s current peripheral neuropathy is not causally related to his active service or any incident therein, to include exposure to herbicide agents. As an initial matter, although the Veteran has not been afforded a VA Compensation and Pension examination for his claim of service connection for peripheral neuropathy, the VA has obtained and associated examinations and medical opinions necessary to make a decision on the claim in February 2009 and in June 2009. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board thus finds that the statutory duty to assist has been fulfilled by the above VA medical opinions of record and that a remand for a VA Compensation and Pension examination is not necessary. Service personnel records show that the Veteran served in Vietnam from June 15, 1969 to June 6, 1970. Service treatment records are silent for the onset of neurological abnormalities. The records include the results of a January 6, 1971 physical examination. The Veteran reported a history of leg cramps but denied foot trouble, paralysis, and neuritis. The examiner noted no neurological abnormalities. He ended active duty on January 14, 1971. Medical treatment records show that the Veteran consistently reported that his peripheral neuropathy had its onset long after discharge in January 1971. There are no complaints of, treatments for, or diagnoses of peripheral neuropathy in the Veteran’s service treatment record despite complaints of finger burn and toe examinations. There were also no neurological issues found in the June 1980 VA examination. The first record of the Veteran complaining of numbness was in March 1991, or 20 years after discharge, when the Veteran complained of intermittent numbness in the right hand and feet to a private provider. In April 1991, the Veteran reported that the numbness of his limbs began a year ago and that the numbness of his hands and feet began two months ago. In November 1996, the Veteran reported that he had been suffering from peripheral neuropathy “at least since 1989.” The private practitioner noted that the Veteran’s mother had borderline type II diabetes mellitus. In February 2003, a private provider opined that peripheral neuropathy “sure could come from Agent Orange” and that examinations were needed to rule out other etiologies. The examiner stated that “getting a CBC, chem-14, B12, folic acid, TSH” was necessary to see if there was any other cause. In October 2003, a review of the CT angiogram showed that there was no evidence of any blockage and vascular disease was ruled out. In March 2004, when the Veteran complained of pain in the right foot, the Veteran denied any weakness or numbness, and the private practitioner opined that it may be related to alcohol intake or B12 deficiency. The private practitioner also reassured the Veteran “about the noninvolvement of Agent Orange on his present complaints.” In February 2007, the private practitioner who offered the February 2003 opinion stated that “Agent Orange is the most likely cause” of the Veteran’s peripheral neuropathy as he could not identify “another physiological mechanism.” The Board finds the February 2007 private medical opinion to be adequate as it is supported by rationale although by the theory of exclusion of other possible causes. During a September 2007 Board hearing, the Veteran testified that his neurological symptoms started at some time in the 1990s. In February 2009, the Chief of Neurology Service at the Baltimore VA Medical Center disagreed with the February 2007 private medical opinion and opined that the Veteran’s peripheral neuropathy was not caused by his active service as “up to 50 percent of patients in the civilian population do not have any definable cause.” In January 2009, the Veteran’s blood sugar was at 105, which is “high.” In September 2009, another neurologist at the Fargo VA Medical Center opined that the “only apparent explanation for the neuropathy is an underlying early/mild type II diabetes.” The Veteran was not diagnosed as having type II diabetes mellitus. The Board finds both the February 2009 and September 2009 to be adequate as they are supported by rationale, including a discussion of the February 2007 private medical opinion by the February 2009 VA medical practitioner. In November 2016, the Veteran reported that the onset of his symptoms was about 15-20 years ago. In a VA outpatient record the same month, a VA neurologist noted that the polyneuropathy “seems likely” to be related to a history of glucose intolerance. In a disability benefits questionnaire (DBQ) completed by a private practitioner in April 2017, the Veteran reported that his peripheral neuropathy had been going on for 20 years and getting progressively worse since 2009. VA Medical Center treatment records in October 2017 note that the Veteran was assessed as having hereditary peripheral neuropathy. In September 2018, the Veteran met the criteria for prediabetes and his blood sugar was consistently measured as “high” up to September 2020. The Veteran was not, however, diagnosed as having diabetes. In the December 2020 hearing, the Veteran testified that the onset of his numbness was in the winter of 1971. The Veteran’s spouse, who has been married to the Veteran since 1973, also testified that the Veteran always complained of having cold hands and feet. The Veteran testified that he did not have health insurance in all but one year of the first 10 years of marriage, and that he did not consider receiving treatment for the numbness. The Veteran testified that he believed his numbness to have been caused by exposure to herbicide agents during his deployment in the Republic of Vietnam as he has not had peripheral neuropathy prior to enlistment. It is well established that internal inconsistency, bias, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran may be considered. Caluza v. Brown, 7 Vet. App. 498, 511-12, aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curium) (table); Madden v. Gober, 125 Fed. Cir. 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence”). As discussed in detail above, prior to the December 2020 hearing, the Veteran consistently reported that the onset of his symptoms was in 1989. Decades of contemporaneous medical treatment records based on the Veteran’s own reports support onset of symptoms from 1989 rather than 1971 as he testified in December 2020. The Board also notes that the Veteran was afforded a VA examination in June 1980 and that the Veteran did not have any neurological issues. Given the inconsistencies and contradictions in the record, including the examples discussed above, the record does not establish continuous symptomatology since discharge or within a year of discharge. Thus, service connection on a presumptive basis is denied. Turning to the question of direct service connection, the Board assigns greater probative weight to the September 2009 medical opinion that found that the Veteran’s peripheral neuropathy was likely a precursor to type II diabetes mellitus as it is supported by rationale and by the Veteran’s subsequent blood sugar readings that qualify as being prediabetic. Although the February 2007 private medical practitioner opined that the cause was likely from exposure to herbicide agents, the Board finds that his opinion was properly accounted for and outweighed by the following February and September 2009 VA medical opinions as discussed above. In sum, the preponderance of the evidence is against the Veteran’s symptoms manifesting within a year of discharge and against a finding of a causal relationship between the Veteran’s active duty, to include conceded exposure to herbicide agents in the Republic of Vietnam, and his current peripheral neuropathy. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations and the Veteran’s claim of entitlement to service connection for peripheral neuropathy is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun, 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.