Citation Nr: 21029138 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 17-62 506A DATE: May 12, 2021 ORDER The claim for service connection for left lower extremity peripheral neuropathy, is reopened. The claim for service connection for right lower extremity peripheral neuropathy, is reopened. REMANDED Entitlement to service connection for left lower extremity peripheral neuropathy, due to conceded herbicide exposure, to include secondary to vascular disorder is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy, due to conceded herbicide exposure, to include secondary to vascular disorder is remanded. FINDINGS OF FACT 1. The claim for service connection for left lower extremity peripheral neuropathy, is reopened. 2. The claim for service connection for right lower extremity peripheral neuropathy, is reopened. CONCLUSIONS OF LAW 1. The November 2014 rating decision that denied service connection for peripheral neuropathy of the left lower extremity is a final and binding determination on the evidence then of record. 38 U.S.C. § 7105. 2. The November 2014 rating decision that denied service connection for peripheral neuropathy of the right lower extremity is a final and binding determination on the evidence then of record. 38 U.S.C. § 7105. 3. New and material evidence has been received since the November 2014 rating decision that denied service connection for peripheral neuropathy of the left lower extremity. 38 U.S.C. §§ 1110, 5108, 7104; 38 C.F.R. § 3.156. 4. New and material evidence has been received since the November 2014 rating decision that denied service connection for peripheral neuropathy of the right lower extremity. 38 U.S.C. §§ 1110, 5108, 7104; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Petition to reopen a claim for service connection for left and right lower extremity peripheral neuropathy. The Veteran had active duty service from February 1965 to February 1969. The RO denied a claim for a left and right lower extremity peripheral neuropathy, in November 2014. The Veteran did not timely appeal to this decision. In September 2016, the Veteran filed a petition to reopen the claim for service connection for left and right lower extremity peripheral neuropathy. The RO denied the petition in November 2016 rating action and December 2017 statement of the case (SOC). Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). The evidence of record at the time of the November 2014 rating decision included service records and VA examination and outpatient records. The RO denied service connection because there was no evidence of left and right lower extremity peripheral neuropathy during service. The Veteran was notified of this denial on November 13, 2014. He did not appeal this decision. Therefore, this denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). Since the time of the November 2014 rating decision, additional relevant evidence, to include testimony of medical nexus or whether this peripheral neuropathy complies with the definition of peripheral neuropathy on a presumptive basis based on herbicide exposure, and some treatise evidence from the Cleveland Clinic regarding peripheral neuropathy and its etiology, have been added to the e file. This evidence, not previously submitted to decision makers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Therefore, the claim for service connection for left and right lower extremity peripheral neuropathy is reopened. REASONS FOR REMAND The Veteran had active duty service from February 1965 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a Notice of Disagreement on January 19, 2017. 1. Entitlement to service connection for left lower extremity peripheral neuropathy, due to conceded herbicide exposure, to include secondary to vascular disorder is remanded. 2. Entitlement to service connection for right lower extremity peripheral neuropathy, due to conceded herbicide exposure, to include secondary to vascular disorder is remanded. The Veteran asserts that his lower extremities peripheral neuropathies are related to herbicide exposure, to include secondary to his service-connected vascular disorder. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran's representative testified at a hearing before the undersigned Veterans Law Judge in January 2021, that the Veteran's diagnosed peripheral neuropathy is due to his conceded exposures to herbicides. The Veteran's representative also submitted some treatise evidence from the Cleveland Clinic regarding peripheral neuropathy and its etiology, and also raised the issue of the service-connected vascular disorder caused or aggravated this peripheral neuropathy. The Board finds that a remand is warranted to obtain an opinion whether the Veteran's current peripheral neuropathies diagnosis is due to the conceded exposures to herbicide agents, and for secondary service connection, whether the service-connected vascular disorder caused or aggravated these peripheral neuropathies. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completion of directive 1, obtain a medical opinion as to whether it is as likely as not (50/50 probability or greater) that the lower extremities peripheral neuropathies are related to service. The examiner is asked to review the record prior to the examination and to provide diagnoses. If present, the examiner is asked to opine on whether it is as likely as not that it was of early-onset or caused or aggravated by the Veteran's vascular disorder. "Aggravated" means to have caused any increase in severity that is beyond the normal progression of the disability and it need not be permanent in nature. The Veteran is presumed to have been exposed to herbicides. The examiner is asked to review the recent relevant literature, which should be discussed in the opinion. All opinions must be accompanied with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ottley III 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.