Citation Nr: 22017521 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 20-10 354 DATE: March 25, 2022 REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1965 to May 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran's claim was initially denied in an August 2014 rating decision. The Veteran was notified of this decision in August 2014. The Veteran did not appeal the decision and no new and material evidence was received within a year of that decision. Thus, the August 2014 decision became final. 38 C.F.R. § 20.1103. The Veteran filed a new Fully Developed Claim in October 2018, and in a December 2018 rating decision, the agency of original jurisdiction (AOJ) denied the claim because new and material evidence had not been submitted. The AOJ also denied the claim on the merits. The Veteran timely submitted a notice of disagreement (NOD) in January 2019. In a February 2020 statement of the case (SOC), the AOJ denied the claim on the merits, but did not discuss the issue of new and material evidence. Generally, to reopen a previously denied, final claim, a claimant must present new and material evidence. See 38 U.S.C. § 5108. An AOJ's determination whether new and material evidence has been received may be appealed to the Board. In this case, although the AOJ did not address new and material evidence in the February 2020 SOC, the Board finds that it made a positive de facto determination that such evidence has been received by adjudicating the issue of service connection for peripheral neuropathy of the bilateral lower extremities on the merits. Accordingly, the Board shall proceed to address these issues without remanding for preliminary determinations as to the receipt of new and material evidence. See Hickson v. Shinseki, 23 Vet. App. 394, 295-96 (Fed. Cir. 2010). The Veteran testified before the undersigned at a January 2022 hearing. A transcript is of record. Upon review, the Board finds that additional development is needed prior to final adjudication of the claim. The Veteran contends that his peripheral neuropathy of the bilateral lower extremities is etiologically related to his active duty service and is specifically due to herbicide exposure. In support of his claim, the Veteran's VA and private treatment records have been associated with the claims file. However, the Veteran has not been afforded a VA examination and opinion regarding the nature and etiology of his condition. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran has not yet been provided with an examination or medical opinion on his peripheral neuropathy. In addition, his service personnel records reflect that he served in the Republic of Vietnam during the Vietnam era. Therefore, he is presumed to have been exposed to herbicide agents. See 38 C.F.R. § 3.307(a)(6)(iii). As such, the record reflects there is evidence of a disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, a remand is required for a VA examination and opinion regarding the nature and etiology of his peripheral neuropathy of the bilateral lower extremities. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for peripheral neuropathy of the bilateral lower extremities. After acquiring any information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any peripheral neuropathy of the bilateral lower extremities that may be present. 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 lay assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify any peripheral neuropathy involving the Veteran's bilateral lower extremities that has been present during the appeal period or within close proximity thereto. The examiner should opine as to whether it is at least as likely as not that the disorder is causally or etiologically related to the Veteran's military service, to include herbicide exposure therein. The examiner must note that applicable VA law establishes that the legal provision for presumptive service connection does not otherwise preclude a veteran from establishing service connection with proof of actual direct causation on a non-presumptive, direct incurrence basis. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claim file, or in the alternative, the claims file, must be made available to the examiner for review. The AOJ should conduct any other development as may be indicated. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. DeVerter, 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.