Citation Nr: A24050737 Decision Date: 08/28/24 Archive Date: 08/28/24 DOCKET NO. 230202-320540 DATE: August 28, 2024 ORDER New and relevant evidence has been received to readjudicate the claim of entitlement to service connection for bilateral foot neuropathy secondary to non-Hodgkin's lymphoma. Entitlement to service connection for right foot neuropathy secondary to non-Hodgkin's lymphoma is granted. Entitlement to service connection for left foot neuropathy secondary to non-Hodgkin's lymphoma is granted. FINDINGS OF FACT 1. The agency of original jurisdiction (AOJ) denied the Veteran's claim of entitlement to service connection for bilateral foot neuropathy in a November 2022 rating decision. 2. Evidence received since the November 2022 rating decision tends to prove or disprove the claim for service connection for bilateral foot neuropathy secondary non-Hodgkin's lymphoma. 3. The persuasive weight of the evidence supports a finding that the Veteran is service connected for non-Hodgkin's lymphoma and the chemotherapy induced bilateral foot neuropathy is secondary to the service-connected non-Hodgkin's lymphoma. CONCLUSIONS OF LAW 1. As the evidence received subsequent to the November 2022 rating decision is new and relevant, the requirement s to readjudicate the claim for entitlement to service connection for bilateral foot neuropathy have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for entitlement to service connection for right foot neuropathy secondary to non-Hodgkin's lymphoma have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for entitlement to service connection for left foot neuropathy secondary to non-Hodgkin's lymphoma have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) from a January 2023 rating decision issued by a Department of Veterans Affairs (VA) AOJ, which denied chemotherapy induced bilateral foot neuropathy secondary to service-connected non-Hodgkin lymphoma stating that new and relevant evidence had not been received. In February 2023, the Veteran filed a timely VA Form 10182, Notice of Disagreement (NOD) requesting the direct review docket with review by a Veterans Law Judge. Accordingly, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. By way of background, the AOJ denied the claim for peripheral neuropathy in January 2021. In March 2021, the Veteran submitted a NOD. The AOJ again denied this claim in November 2022. The Veteran submitted a supplemental claim in December 2022 which the AOJ denied in January 2023 contending new and relevant evidence had not been received. This appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.902(c). New and Relevant evidence was received which warrants readjudication of the claim. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). "New" evidence means existing evidence not previously submitted to agency decisionmakers. 38 C.F.R. § 3.2501 (a)(1). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue, including evidence that raises a theory of entitlement that was not previously addressed. Id. In November 2022, the AOJ denied the Veteran's claim for entitlement to direct service connection for bilateral foot neuropathy asserting it was not incurred in service. In December 2022, the Veteran submitted medical records reflecting the bilateral foot neuropathy resulted from chemotherapy for his treatment for non-Hodgkin's lymphoma. The medical records submitted included records from the Rocky Mountain Cancer Center which was not previously included in the record and not listed as evidence considered in the November 2022 rating decision and is therefore new evidence. This evidence is relevant in that it confirms the on-going nature of the Veteran's chemo-induced bilateral foot neuropathy and asserts that the neuropathy is "almost certainly" exacerbated by the chemotherapy. The information is relevant as it proves a matter at issue. The Board finds new and relevant evidence was received. Therefore, readjudication of the claim for the Veteran's bilateral foot neuropathy secondary to non-Hodgkin's lymphoma is warranted. 2. Entitlement to service connection for right foot neuropathy secondary to non-Hodgkin lymphoma is granted. 3. Entitlement to service connection for left foot neuropathy secondary to non-Hodgkin lymphoma is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability which is proximately due to or the result of an established service-connected disease. 38 C.F.R. §§ 3.310 (a)-(b); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a); Allen v, Brown, 7 Vet. App. 439 (1995). When service connection is established for a secondary condition, the secondary condition shall be considered part of the original condition. Id. A medical nexus opinion must state whether the claimed condition was caused by or aggravated by the service-connected condition. El-Amin v. Shinseki, 26 Vet. App. 136 (2013); 38 U.S.C. § 1110. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Depending on the evidence and the contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). The claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107(a). The VA shall consider all information, including lay and medical evidence of record. VA is responsible for determining whether the evidence persuasively favors one side or another. 38 C.F.R. § 4.3. When there is an approximate or nearly equal balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran and the claim will be granted on the merits. 38 U.S.C. § 5107(b). When the evidence persuasively favors against the claims of the Veteran, the benefit of the doubt doctrine is inapplicable, and the claim will be denied on its merits. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) As the issues for the entitlement to service connection for right and left foot chemotherapy induced neuropathy, secondary to non-Hodgkin's lymphoma are the same, the Board will combine the issues in its analysis. The January 2023 rating decision conceded the Veteran has the current disabilities of post chemotherapy peripheral neuropathy in the right foot and left foot and non-Hodgkin's lymphoma. The Board is bound by this favorable finding. 38 C.F.R. § 3.104. Thus, the current disabilities of non-Hodgkin's lymphoma and bilateral post chemotherapy peripheral neuropathy satisfies the first element of service connection. The AOJ also conceded the Veteran has bilateral foot neuropathy secondary to the non-Hodgkin's lymphoma. The rating decision, however, contains a factual error and states that the diagnosis of non-Hodgkin's lymphoma is not reflected in the VA treatment records and is not service connected. In October 2022, the VA determined the Veteran was service connected for non-Hodgkin's lymphoma at 100 percent, effective February 2018. Additionally, a September 2022 VA Disability Benefits Questionnaire examiner opined that agent orange was used in the demilitarized zone in South Korea where the Veteran served in 1971. Although the use of agent orange ceased three months prior to the Veteran's arrival, the examiner noted that articles and studies showed that the herbicide agents stay in the soil and water for ten years and beyond. The examiner opined that the Veteran's non-Hodgkin's lymphoma was at least as likely as not incurred in or caused by the claimed inservice event, injury, or illness. Accordingly, the second element of service connection, an inservice event or injury, is satisfied. The third element of service connection for an illness or diseases on a secondary basis requires a medical nexus opinion stating whether the claimed condition was caused by or aggravated by the service-connected condition. El-Amin v. Shinseki, 26 Vet. App. 136 (2013); 38 U.S.C. § 1110. The AOJ appeared to concede this element which is also confirmed in a positive nexus opinion. The November 2022 VA Disability Questionnaire examiner opined that it is at least as likely as not that the Veteran's peripheral neuropathy of the bilateral upper and lower extremities is proximately due to or the result of chemotherapy treatment for his non-Hodgkin's lymphoma. Chemotherapy-induced peripheral neuropathy is an adverse effect of chemotherapy that is frequently experienced by patients receiving treatment for cancer. The examiner further notes that the pain and sensory abnormalities may persist for months even years after the cessation of chemotherapy. Thus, the board finds that the last element of service connection for bilateral neuropathy secondary to non-Hodgkin's lymphoma is satisfied. Accordingly, the criteria for service connection for right and left foot neuropathy secondary to non-Hodgkin's lymphoma have been met. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. The approximate balance of the evidence is in favor of the Veteran's claim for right and left foot neuropathy, secondary to service-connected non-Hodgkin's lymphoma. As such, that doctrine is applicable in the instant appeal, and the Veteran's claim is granted. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Polk 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.