Citation Nr: 18160576
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-06 266
DATE:	December 27, 2018
ORDER
As new and material evidence has been received, the claim for entitlement to service connection for idiopathic peripheral neuropathy, to include as due to exposure to herbicide agents, is reopened, and to this extent only, the appeal is granted.  
REMANDED
Entitlement to service connection for idiopathic peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded.
Entitlement to service connection for neurogenic bladder, to include as secondary to service-connected residuals of prostate cancer, is remanded.
Entitlement to service connection for orthostatic hypotension is remanded. 
Entitlement to service connection for ischemic optic atrophy of the right eye with bilateral cataracts is remanded.

FINDINGS OF FACT
1. The December 2009 rating decision that denied service connection for idiopathic peripheral neuropathy was not timely appealed and became final.  
2. Evidence received since the December 2009 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection for idiopathic peripheral neuropathy. 
CONCLUSIONS OF LAW
1. The December 2009 rating decision is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).    
2. Evidence received since the December 2009 rating decision is both new and material and the claim for entitlement to service connection for idiopathic peripheral neuropathy, to include as due to exposure to herbicide agents, is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Air Force from September 1962 to January 1988, including service in the Republic of Vietnam.  Unfortunately, the Veteran passed away in March 2017, during the pendency of this appeal.  The appellant is the Veteran’s surviving spouse, who has been properly substituted as a claimant.  
These matters are on appeal from a July 2015 rating decision.  Jurisdiction of these matters is with the Regional Office (RO) in Denver, Colorado.  
In his January 2017 substantive appeal, the Veteran requested the opportunity to testify before a member of the Board.  A video conference hearing was scheduled for June 2018; however, in May 2018 correspondence, the appellant cancelled the scheduled hearing.  Therefore, the hearing request is considered withdrawn.
The Board notes that the Veteran claimed entitlement to service connection for orthostatic hypertension, and the RO developed the Veteran’s claim for such.  However, the Veteran’s medical records clearly show that the Veteran had a diagnosis of orthostatic hypotension (low blood pressure).  The Board has updated the issue accordingly.   
New and Material Evidence
Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority.  38 C.F.R. § 3.104(a).  The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period.  38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a).  
VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
New evidence is evidence not previously submitted to agency decisionmakers.  Material evidence is 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 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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened.  See id. at 117-18.  Moreover, new and material evidence is not required as to each previously unproven element of a claim.  See id. at 120.
The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  Evans v. Brown, 9 Vet. App. 273 (1996).  For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Whether new and material evidence has been received to reopen the claim for service connection for idiopathic peripheral neuropathy, to include as due to exposure to herbicide agents
The last prior final denial for the claim for service connection for idiopathic peripheral neuropathy was a December 2009 rating decision.  It is final because the Veteran did not file a notice of disagreement within one year of the rating decision.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  Therefore, the Board looks to the evidence submitted since December 2009 for new and material evidence.  
When determining whether evidence is new and material, the specified basis for the last final disallowance must be considered.  See Hodge, 155 F.3d at 1356.  In this regard, the Board notes that in the December 2009 rating decision, the RO denied the Veteran’s claim for service connection because his peripheral neuropathy was not shown to have manifested during or within one year of service, or to be otherwise related to any in-service illness, injury, or event, including exposure to herbicide agents.    
Evidence received since December 2009 includes a June 2016 letter from the Veteran’s private physician, Dr. Y., which states that the Veteran may have had symptoms of peripheral neuropathy as far back as 1972, and that exposure to herbicide agents may have caused or contributed to the condition.  As this evidence was not of record at the time of the December 2009 denial and it relates to an unestablished fact necessary to substantiate the Veteran’s claim, the Board finds the evidence to be both new and material.  38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117.  
Accordingly, the claim for entitlement to service connection for idiopathic peripheral neuropathy, to include as due to exposure to herbicide agents, is reopened.  
REASONS FOR REMAND
Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review of the claims remaining on appeal.
Entitlement to service connection for idiopathic peripheral neuropathy, to include as due to exposure to herbicide agents, is remanded.
Prior to his death, the Veteran sought entitlement to service connection for idiopathic peripheral neuropathy, which he contended may be due to exposure to herbicide agents during service.  VA has already conceded exposure to herbicide agents due to the Veteran’s service in the Republic of Vietnam.  
The Veteran’s private treatment records show that the Veteran first sought treatment for tingling and numbness in his lower extremities in September 1993.  At the time, he reported to his treating physician that he noticed tingling and numbness in his toes shortly after experiencing severe lower back pain in December 1989.  The Board notes that the Veteran was service-connected for degenerative disc disease of the lumbar and thoracic spine with radiculopathy.    
In April 2015, the Veteran underwent a VA Agent Orange registry examination.  The examiner noted that the Veteran had a diagnosis of peripheral neuropathy, but remarked that it was thought to be related to a condition called adult polyglucosyn body disease.  
In August 2016, the Veteran submitted a June 2016 letter from his private physician, Dr. Y., who stated that the Veteran may have had symptoms of peripheral neuropathy dating back to 1972, and “Agent Orange may certainly cause and/or contribute to [his] symptoms of peripheral neuropathy and therefore may be linked to his exposure.”  However, the Board finds that Dr. Y.’s opinion lacks sufficient medical rationale and is speculative; therefore, it cannot be used as a basis to grant service connection for peripheral neuropathy.  See Obert v. Brown, 5 Vet. App. 30 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
The Board notes that the Veteran was never afforded a VA examination to assess the nature and etiology of his peripheral neuropathy.  In the absence of an adequate medical opinion of record, the Board finds it necessary to remand the claim to obtain a medical opinion that addresses whether the Veteran’s peripheral neuropathy was caused by his in-service herbicide exposure.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  Although there is no medical evidence that the Veteran’s peripheral neuropathy manifested within one year of his presumed last exposure to herbicide agents, service connection may still be warranted on a direct basis based on his exposure.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  Additionally, in light of medical evidence that the Veteran’s peripheral neuropathy may be related to his service-connected low back disability, the medical opinion should also address whether service connection is warranted on a secondary basis. 
Entitlement to service connection for neurogenic bladder, to include as secondary to service-connected residuals of prostate cancer, is remanded.
Prior to his death, the Veteran also sought entitlement to service connection for neurogenic bladder, claimed as urination problems, which he contended may be secondary to service-connected residuals of prostate cancer.  
The Board notes that the Veteran underwent a VA prostate cancer disability benefits questionnaire (DBQ) in May 2015.  Upon examination, the Veteran was diagnosed with neurogenic bladder which the examiner noted was due to the Veteran’s diagnosis of adult polyglycosan body disease.  However, the examiner did not provide a medical rationale to support this finding, nor did he express a medical opinion using the correct legal standard of “at least as likely as not.”   Moreover, there is no indication that the examiner reviewed the Veteran’s claims file, including his medical records.  Therefore, the Board finds this examination to be inadequate for adjudication purposes.  
When VA undertakes to provide a VA examination or opinion, even if not statutorily required to do so, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Therefore, the Board finds that remand is required to obtain a medical opinion that adequately addresses the nature and etiology of the Veteran’s neurogenic bladder before the Board can render an informed decision on the claim.  Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009).  
The Board also notes that, in an October 2003 private treatment record, the Veteran’s physician opined that his urinary voiding dysfunction may be caused by his peripheral neuropathy.  In light of medical evidence that the Veteran’s neurogenic bladder may be secondary to the Veteran’s peripheral neuropathy, the Board finds that these service connection claims are inextricably intertwined and must be adjudicated together.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).      
Entitlement to service connection for orthostatic hypotension is remanded. 
Entitlement to service connection for ischemic optic atrophy of the right eye with bilateral cataracts is remanded.
Finally, the Board notes that the claims file contains medical evidence that the Veteran’s orthostatic hypotension was related to his peripheral neuropathy and that his ischemic optic atrophy of the right eye was due to his orthostatic hypotension.  Therefore, the Board finds that these claims are inextricably intertwined with the claim for service connection for peripheral neuropathy and must be adjudicated together.  See Harris, 1 Vet. App. at 183.  If the medical opinion requested in regard to peripheral neuropathy is favorable to the appellant’s claim, then, on remand, the RO must undertake appropriate steps to develop the remaining service connection claims, including, if necessary, obtaining additional addendum medical opinions.         
Accordingly, the matters are REMANDED for the following actions:
1. Forward the Veteran’s claims file to a medical professional (M.D.) of appropriate expertise to provide a medical opinion that addresses the nature and etiology of the Veteran’s idiopathic peripheral neuropathy and neurogenic bladder.  The examiner must review the claims file in its entirety, to include a copy of this REMAND, and must note that review in the report.
The examiner is asked to provide an opinion with respect to the following:
Idiopathic Peripheral Neuropathy
(a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral neuropathy was incurred in or caused by an in-service injury, event, or illness, to include as due to exposure to herbicide agents? 
(b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral neuropathy was caused by his service-connected degenerative disc disease of the lumbar and thoracic spine with radiculopathy?
(c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral neuropathy was aggravated (permanently increased in severity beyond its natural progression) by his service-connected degenerative disc disease of the lumbar and thoracic spine with radiculopathy?
In providing the requested opinion, the examiner is asked to specifically address: i) the April 2015 VA medical record which attributes the Veteran’s peripheral neuropathy to adult polyglucosyn body disease; ii) the June 2016 letter in which Dr. Y. opines that exposure to herbicide agents may have caused or contributed to the Veteran’s peripheral neuropathy; and iii) the Veteran’s statements to his physician in September 1993 that he noticed symptoms of peripheral neuropathy in his feet shortly after experiencing severe lower back pain in December 1989.  
Neurogenic Bladder
(a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s neurogenic bladder was incurred in or caused by an in-service injury, event, or illness? 
(b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s neurogenic bladder was caused by his service-connected residuals of prostate cancer?
(c) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s neurogenic bladder was aggravated (permanently increased in severity beyond its natural progression) by his service-connected residuals of prostate cancer?
In providing the requested opinion, the examiner is asked to specifically address: i) the May 2015 finding by the VA examiner that the Veteran’s neurogenic bladder is caused by adult polyglycosan body disease; and ii) the October 2003 treatment record in which the Veteran’s private physician opines that his urinary voiding dysfunction may be due to his peripheral neuropathy. 
The examiner must set forth a complete rationale for the conclusion(s) reached.  If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so.
2. If the requested medical opinion is favorable to the claim for service connection for peripheral neuropathy, then the RO must conduct any additional development it deems necessary, including obtaining additional medical opinions, to fairly adjudicate the appellant’s remaining service connection claims for orthostatic hypotension and ischemic optic atrophy of the right eye with bilateral cataracts. 

 
LESLEY A. REIN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Melissa Barbee, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.