Citation Nr: 21027043 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-07 187A DATE: May 4, 2021 ORDER New and material evidence having been received, the claim for service connection for right lower extremity peripheral neuropathy, claimed as a right ankle and right foot disability, is reopened. REMANDED Entitlement to service connection for right lower extremity peripheral neuropathy, claimed as a right ankle and right foot disability, is remanded. FINDINGS OF FACT 1. In a January 2015 rating decision, the Regional Office (RO) denied a claim for service connection for right lower extremity peripheral neuropathy, claimed as a right ankle and right foot disability. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the January 2015 decision was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim for service connection for right lower extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The January 2015 rating decision that denied the Veteran's claim for service connection for right lower extremity peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2015). 2. The evidence received since the January 2015 rating decision is new and material, and the claim for service connection for right lower extremity peripheral neuropathy is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1963 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) regional office (RO) (hereinafter Agency of Original Jurisdiction (AOJ)). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2021. A transcript has been associated with the record. New and Material In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by Regional Office (RO), the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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 the purposes of reopening a 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, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that 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, to include by triggering the Secretary's duty to assist. Id. at 118. The Veteran's claim for service connection for right lower extremity peripheral neuropathy was originally denied in an August 2008 rating decision. The Veteran was notified of the decision and of his appellate rights; however, he did not file a notice of disagreement or submit new and material evidence within one year of receiving notice of the decision. Therefore, the August 2008 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2008). In April 2014, the Veteran submitted a claim to reopen his previously denied service connection claim for right lower extremity peripheral neuropathy. In a January 2015 rating decision, the AOJ denied the claim for service connection for right lower extremity peripheral neuropathy, finding that the disorder neither occurred in nor was caused by service. The AOJ noted that there was no link between the Veteran's diagnosed disability and his service. The Veteran was notified of the decision and of his appellate rights; however, he did not file a notice of disagreement or submit new and material evidence within one year of receiving notice of the decision. Therefore, the January 2015 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (2015). The evidence received since the January 2015 rating decision includes an April 2016 private medical opinion issued by D.M. (initials used to protect privacy). D.M., the Veteran's private physician, noted that the Veteran's right lower extremity neuropathy was a permanent injury that resulted from an incident that occurred 50 years ago during service. The Board finds that this April 2016 medical opinion is new, as it was issued after the January 2015 rating decision, and relates to a previously unestablished fact and could reasonably substantiate the claim were it to be reopened. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Specifically, the opinion addresses the nexus between the Veteran's service and his current diagnosis of right lower extremity peripheral neuropathy. Thus, the Board finds that the evidence is both new and material, and the claim for service connection for right lower extremity peripheral neuropathy is reopened. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claim can be addressed. REASONS FOR REMAND November 1964 service treatment records show that the Veteran sought treatment for a possible fractured ankle. The initial record did not specify which ankle was injured, however, there was a record of a slight abrasion on the left medial foot. The record is partially illegible, so it is unclear which part of the lower extremity the examiner was referring to. X-rays taken at the time were negative, and subsequent November 1964 service treatment records documented continued improvement. Post-service medical records document neurological impairment of both the right and left lower extremities. In a September 2005 record from Bayside Orthopaedic, the Veteran was noted to have diagnoses of bilateral lower extremity sensory motor diffuse peripheral neuropathy of unknown etiology and left posterior tibial neuropathy of the ankle, possibly compatible with tarsal tunnel syndrome. In June 2011, a tarsal tunnel release was performed on the right lower extremity in order to treat peripheral neuropathy of the right lower extremity. In a November 2016 record from Bayside Orthopaedic, the examiner noted that the Veteran had an injury in service and subsequently had a right footdrop which has been present for many years. During the January 2021 Board hearing, the Veteran reported that following an injury to his right lower extremity in service, he began to experience tingling in his right foot that progressively got worse since service. He also reported that the separation examination he was provided in service was not extensive, and that he did not remember his lower extremities being examined. The Veteran also reported that he had broken his left foot several years earlier, which may be the basis for any diagnoses pertaining to his left foot. In an August 2016 VA medical opinion, the examiner found that it was less likely than not that the Veteran's right lower extremity neuropathy was due to his injury during service. The examiner indicated that this was an acute and transient soft tissue injury, and that while trauma may cause peripheral neuropathy, there were no objective findings of any significant trauma to the right foot noted in the service records. The examiner also initially noted that the November 1964 service medical record did not specify which ankle was injured, but then later referenced resolution of the left ankle soft tissue injury in 1964. In support of the opinion, the examiner also referenced the Veteran's normal separation examination. As discussed above, the Veteran also submitted a medical opinion from D.M., the Veteran's private physician, which noted that the Veteran's right lower extremity neuropathy was a permanent injury that resulted from an incident that occurred 50 years ago during service. However, there was no rationale provided with the opinion. An opinion with sufficient rationale is required for the Board to make a fully informed decision on the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) ("a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). Given the conflicting information in the August 2016 opinion regarding which ankle was injured, as well as the lack of rationale provided in the April 2016 private opinion, the Board finds that a remand is necessary to obtain an addendum opinion which addresses the nature and etiology of the Veteran's right lower extremity neuropathy. This matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should obtain any outstanding private and VA treatment records pertaining to the Veteran's right lower extremity peripheral neuropathy. 2. After the above development has been completed, the AOJ should obtain an addendum opinion to determine the nature and etiology of the Veteran's right lower extremity neuropathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's right lower extremity neuropathy is causally or etiologically related to his military service. In rendering this opinion, the examiner should address the November 1964 service treatment record that documented an ankle injury. The examiner should also consider and address the April 2016 private opinion issued by D.M. and the Veteran's testimony during the January 2021 Board hearing that he was not provided with an extensive examination at separation that would have captured his right lower extremity symptoms. The examiner must provide a complete rationale for any opinions provided. Any opinion offered must take into account the Veteran's history and contentions. The medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. (continued on the next page) 3. The AOJ should conduct any other development that may be indicated as a consequence of the actions taken in the preceding paragraphs. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Saikh, 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.