Citation Nr: 23027294 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 20-14 621 DATE: May 8, 2023 ORDER New and material evidence having been received, reopening of the claim for service connection of an acquired psychiatric disability, variously claimed as anxiety, depression, and sleep disturbance, as secondary to a heart condition, is granted. REMANDED Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. A May 2015 rating decision denied the claim for service connection of an acquired psychiatric disability, then claimed as anxiety and depression; the Veteran did not perfect an appeal of that decision. 2. Evidence received since the last final rating decision for the claim of service connection for an acquired psychiatric disability related to an unestablished fact and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening the claim for service connection for an acquired psychiatric disability have been met. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103 (2022). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence A May 2015 rating decision denied the claim for service connection of an acquired psychiatric disability. In that decision, the agency of original jurisdiction (AOJ) denied the claim on a finding that the evidence did not establish that the claimed conditions had any relationship to the Veteran's active service. The Veteran did not file a notice of disagreement within a year of the issuance of that decision, nor was new and material evidence added to the claims file within that time. Therefore, the May 2015 rating decision became final on the issue of service connection of an acquired psychiatric disability. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. In reviewing the evidence added to the claims file since the prior final denial on the merits, the Board finds that additional evidence has been received which is sufficient to reopen the claim. Specifically, additional VA treatment records which document the Veteran's asserted mental health symptom of sleep disturbance were added to the claims file. It is noted that the AOJ made a favorable finding in this regard which the Board declines to disturb. Furthermore, the Board finds that this evidence is considered new as it was not previously of record; it is material as it directly addresses one of the elements for service connection. Thus, the Board finds that reopening of the claim is warranted. REASONS FOR REMAND Service Connection - Bilateral Lower Extremity Peripheral Neuropathy In an April 2023 decision, the Board adjudicated a separate Legacy appeal which included a claim of entitlement to service connection for bilateral lower extremity peripheral neuropathy, originally claimed as bilateral lumbosacral disorder and previously adjudicated through that appeal stream as a claim for bilateral lower extremity radiculopathy. In the April 2023 decision, the issue was remanded for further development. The Board notes that the prior claim in the appeal stream resulting in the April 2023 Board decision stems from a December 2017 rating decision, directly addressing the claim as one for radiculopathy related to the lumbar spine. The claim was filed in June 2017 and has continued to be developed as one for bilateral lower extremity radiculopathy since that time, up to the date of issuance of the recent Board decision. It is understood that the distinction between radiculopathy and peripheral neuropathy is the genesis of nerve involvement, which may stem from separate etiologies. To any extent that the entirety of the claim as pursued through the instant appeal is unresolved through the further development of the parallel claim, the Board notes that a remand of the present issue preserves appellate rights for further adjudication. Moreover, given the development ordered in the April 2023 decision, the Board finds that the current claim is inextricably intertwined (if not entirely absolved) therewith. Accordingly, a remand is necessary to afford the Veteran full due process. Service Connection - Bilateral Upper Extremity Peripheral Neuropathy The Veteran argues that he has a bilateral upper extremity peripheral neuropathy disability which directly related to his active service, claimed as due to asserted herbicide exposure. The Board notes that the April 2023 Board decision includes remand directives to complete further development to corroborate the Veteran's accounts of herbicide exposure. As the instant claim is inextricably intertwined with those directives, a remand is necessary. In addition, the Board notes that the record depicts the Veteran's intermittent reporting of peripheral neuropathy symptoms but does not reflect that a VA examination in relation to the claim has been administered. See 20112-2019, VA Treatment Records. Given the sole assertion presented by the Veteran that the claimed disability has resulted from the alleged herbicide exposure, which has not yet been established, the Board finds that this additional development is also inextricably intertwined with the remand directives set forth within the April 2023 Board decision. For these reasons, a remand of the issue at hand is necessary. Service Connection - Acquired Psychiatric Disability The Veteran posits that he has an acquired psychiatric disability as a result of a claimed heart condition. In this regard, the Board notes again that the claimed issue is inextricably intertwined with the additional development ordered in the April 2023 decision. The Board remanded the claim of entitlement to service connection for hypertension. As such, a remand of this issue is necessary for further development following the completion of the April 2023 directives. Accordingly, these matters are REMANDED for the following action: 1. Following completion of the development ordered within the April 2023 Board decision, schedule the Veteran for a VA examination to determine the nature and etiology of the claimed bilateral upper extremity peripheral neuropathy disability. The claims file must be made available to, and reviewed by, the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner is to consider the Veteran's theories of entitlement to service connection, along with the lay reports of record regarding the onset of the claimed disability. The examiner should provide the following opinions: Based on the examination of the Veteran and review of the record, the VA examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed bilateral peripheral neuropathy disability (if confirmed upon testing) had its onset during his active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must specifically consider the evidence outlined above. A complete and detailed rationale for all opinions expressed must be provided. 2. If the further development of the claims supports service-connection for a heart condition, schedule the Veteran for a VA examination to determine the nature and etiology of an acquired psychiatric disability. The claims file must be made available to, and reviewed by, the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner is to consider the Veteran's theories of entitlement to service connection, along with the lay reports of record regarding the onset of the claimed disability. The examiner should provide the following opinions: Based on the examination of the Veteran and review of the record, the VA examiner must provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's claimed acquired psychiatric disability (if confirmed upon testing) is caused by, aggravated by, or would not have occurred but for a service-connected disability, to include as resulting from a heart condition, or as is otherwise reasonably raised by the record. A complete and detailed rationale for all opinions expressed must be provided. 3. Confirm that all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. (Continued on the next page) ? 4. Then, readjudicate the appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.