Citation Nr: 21027992 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 20-01 604 DATE: May 10, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is reopened. To this limited extent only, the appeal of this issue is granted. New and material evidence having been presented, the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is reopened. To this limited extent only, the appeal of this issue 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 lower extremity is remanded. Entitlement to service connection for benign brain tumor is remanded. FINDINGS OF FACT 1. The Veteran's claims of service connection for peripheral neuropathy of the right and left lower extremity were denied in a September 2011 rating decision that was not appealed; no further evidence relevant to the Veteran's service connection claims for peripheral neuropathy of the right and left lower extremity was submitted for a period of one year following the September 2011 rating decision. 2. Evidence relevant to the peripheral neuropathy of the right and left lower extremity claims was submitted since the September 2011 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claims for service connection for peripheral neuropathy of the right and left lower extremity. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. §§ 3.156, 19.52 (2020). 2. The criteria for reopening the previously denied claim for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. §§ 3.156, 19.52 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a hearing before the Board in his January 2020 substantive appeal, however, in March 2021, the Veteran's representative waived the Veteran's right to any hearing in connection with this pending appeal and requested that the Board expedite this appeal. See 38 C.F.R. § 20.704(e). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. § 3.156. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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(a). 1. New and material evidence having been presented, the claim of entitlement to service connection for peripheral neuropathy of the right lower extremity is reopened. To this limited extent only, the appeal of this issue is granted. 2. New and material evidence having been presented, the claim of entitlement to service connection for peripheral neuropathy of the left lower extremity is reopened. To this limited extent only, the appeal of this issue is granted. The Veteran filed his initial claims of service connection for peripheral neuropathy of the right and left lower extremity in June 2010. In a September 2011 rating decision, the RO denied service connection for peripheral neuropathy of the right and left lower extremity. Specifically, the RO found that there was no nexus between the Veteran's peripheral neuropathy of the right and left lower extremity and his service. The Veteran did not submit any additional evidence regarding these claims or a notice of disagreement with the decision within one year of the September 2011 rating decision. Thus, the September 2011 rating decision became final as to the Veteran's peripheral neuropathy of the right and left lower extremity claims. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). New and material evidence is therefore required to reopen the claims for service connection for peripheral neuropathy of the right and left lower extremity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Since the September 2011 rating decision, the Veteran has submitted private opinions reflecting a nexus between the Veteran's peripheral neuropathy of the right and left lower extremity and his service, including a June 2020 private opinion stating that the Veteran's peripheral neuropathy is at least as likely as not caused by exposure to herbicides while serving in Korea. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran's claims for service connection for peripheral neuropathy of the right and left lower extremity has been received in this case, and these claims are reopened. See 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for peripheral neuropathy of the right and left lower extremities because no VA examiner has provided an opinion as to whether the conditions are related to service on a direct basis. Therefore, the claim must be remanded for a VA examination. The Veteran has also asserted that he was exposed to herbicide agents during his service in Korea. In a February 2019 statement, he stated that he made several trips around the DMZ during his tour. As noted above, the June 2020 private opinion found that the Veteran's peripheral neuropathy is at least as likely as not caused by exposure to herbicides while serving in Korea. Therefore, an attempt should be made to verify the Vetearn's claimed exposure to herbicide agents during his service in Korea. The Veteran also claims, in part, that his bilateral lower extremity peripheral neuropathy is caused and/or aggravated by his back disability. There are opinions of record indicating a link between the peripheral neuropathy and his back disability. The Veteran's back disability is not service connected at this time, however, his claim of entitlement to service connection for a back disability is currently the subject of a separate appeal stream at the Board. Because a decision on this other appeal could significantly impact a decision on the issue of service connection for bilateral lower extremity peripheral neuropathy, the issues are inextricably intertwined, and remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 3. Entitlement to service connection for benign brain tumor is remanded. The Veteran's VA treatment records reflect that the Veteran had surgery in 1989 to remove a brain tumor, and that he is monitored by VA for this condition. More specifically, a February 2017 VA treatment record notes that the brain tumor removal surgery was performed at a private medical facility by Dr. K. However, it does not appear that any attempts have been made to associate these private treatment records with the claims file. Accordingly, remand is warranted to associate any missing treatment records with the claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any private treatment that he may have had for his bilateral lower extremity peripheral neuropathy and/or brain tumor, particularly the surgery to remove his brain tumor. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. The AOJ should take any appropriate steps to attempt to verify the Veteran's asserted herbicide agent exposure during service in Korea, including along the DMZ, to include contacting the Joint Services Records Research Center (JSRRC) or any other appropriate entity. If there is insufficient information to verify the reported herbicide agent exposure in Korea, issue a formal finding outlining the steps taken to verify such exposure and notify the appellant. 3. Ensure that the issue of entitlement to service connection for a back disability has been adjudicated by the Board. 4. Then, determine if any additional development relating to the issue of entitlement to service connection for left and right lower extremity peripheral neuropathy is warranted and, if so, undertake such development. 5. Schedule the Veteran for a VA examination for left and right lower extremity peripheral neuropathy. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is any peripheral neuropathy of the right and left lower extremities at least as likely as not related to service, including any verified exposure to herbicide agents in service? The examiner is advised that a negative opinion cannot be based solely on the fact that the disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 6. After completion of the above, readjudicate the claims for entitlement to service connection for left and right lower extremity peripheral neuropathy and service connection for benign brain tumor. If the benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. K. MARENNA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.