Citation Nr: 21003458 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 18-28 047 DATE: January 21, 2021 ISSUE 1. Entitlement to service connection for supraventricular arrhythmia or atrial fibrillation (claimed as a heart condition). 2. Entitlement to service connection for bilateral upper extremity neuropathy, as secondary to service-connected diabetes mellitus, type II. ORDER Entitlement to service connection for supraventricular arrhythmia or atrial fibrillation (claimed as a heart condition) is dismissed. Entitlement to service connection for bilateral upper extremity neuropathy, to include pain with functional loss, secondary to service-connected diabetes mellitus, type II, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. In a December 2020 Videoconference Board Hearing, he Veteran, through his representative, indicated that he wished to withdraw his appeal for entitlement to supraventricular arrhythmia or atrial fibrillation (claimed as a heart condition). 2. The evidence is at least evenly balanced as to whether the Veteran’s bilateral upper extremity neuropathy, to include pain with functional loss, is secondary to his service-connected diabetes mellitus, Type II. CONCLUSIONS OF LAW 1. The criteria for dismissal of service connection for a supraventricular arrhythmia or atrial fibrillation have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205 2. The criteria for service connection have been met for bilateral upper extremity neuropathy, to include pain and functional impairment, as secondary to service-connected diabetes mellitus, type II. 38 U.S.C. § 1131; 38 C.F.R. § 3.303; Saunders v. Wilkie, 886 F.3d 1356 (2018) (Pain with functional impairment may also be considered a disability for VA purposes.) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to June 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 20105 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In December 2020, the Veteran was afforded a Videoconference Board Hearing before the undersigned Veterans Law Judge in December 2020. A transcript of that hearing is of record. As will be discussed immediately below, at this December 2020 Board Hearing, the Veteran, through his representative, presented a motion to withdraw his claim for service connection for supraventricular arrhythmia or atrial fibrillation (claimed as a heart condition). Additionally, at this December 2020 Board hearing, the undersigned Veterans Law Judge granted the Veteran's motion to advance the case on the docket based on his advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for supraventricular arrhythmia or atrial fibrillation claimed as a heart condition is withdrawn. As referenced in the introduction of this decision, in his December 2020 Board Hearing, the Veteran, through his representative, presented a motion to withdraw his claim for service connection for supraventricular arrhythmia or atrial fibrillation (claimed as a heart condition). The undersigned VLJ explained to the Veteran the ramifications of withdrawing the claim and noted that new and relevant evidence would be required if the Veteran wished to reopen it at a future date. See December 2020 Board Hearing transcript, pgs. 3-4. The Veteran indicated that he understood and still wished to withdraw his claim for service connection for a supraventricular arrhythmia or atrial fibrillation, claimed as a heart condition. Id. Under 38 U.S.C. § 7105, the Board does not have jurisdiction over issues withdrawn by a Veteran. Pursuant to 38 C.F.R. § 20.204, a Veteran can withdraw his appeal on the record at a hearing. Thus, the Board has no jurisdiction to consider the withdrawn issue of supraventricular arrhythmia or atrial fibrillation (claimed as a heart condition) and it shall therefore be dismissed. Entitlement to service connection for bilateral upper extremity neuropathy, secondary to service-connected diabetes mellitus, type II. The Veteran contends that his bilateral upper extremity neuropathy is secondary to his service-connected diabetes mellitus, type II. See August 30, 2016 Notice of Disagreement (NOD). The Board observes that the Veteran is service connected for diabetes mellitus type II, associated with herbicide exposure. See September 12, 2013 Rating Decision. The Veteran is also service connected for peripheral neuropathy, left lower extremity associated with diabetes mellitus type II. See January 8, 2016 Rating Decision. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, the three-element test for service connection requires: (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). Certain presumptions may also apply and are discussed below as relevant. A disability may be shown without an underlying diagnosis if there is pain that results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, in the present claim. Because the Board is granting service connection on a secondary basis, all other theories of entitlement to service connection are rendered moot. In the instant case, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s upper extremity neuropathy, to include pain with functional loss, is secondary to his service-connected diabetes mellitus, Type II. With regards to a current disability, the Board notes that the Veteran was afforded an August 2015 Diabetic Sensory-Motor Peripheral Neuropathy Examination to determine the nature and etiology of his disability. The examiner noted review of the Veteran’s claims file, including VA and private treatment records. The examiner noted the onset of the Veteran’s neuropathy symptoms in his hand, which began 3 months prior to the August 2015 examination. The examiner reported that the right 4th and 5th digits feel numb, with no symptoms in the left hand. The examiner reported that that the Veteran did not have a diagnosis of diabetic peripheral neuropathy. See August 17, 2015 Diabetic Peripheral Neuropathy Examination, pgs. 1-2. The August 2015 examiner reported that there are no treatment records which provide a diagnosis of neuropathy or diabetic neuropathy. The examiner also reported that the Veteran states that his medical provider is traveling outside the country. The Veteran will obtain records upon her return and submit them to the Veteran’s Service Organization for this claim. Id. at 6. The Board observes that in this August 2015 VA Diabetic Sensory-Motor Peripheral Neuropathy examination, the examiner reported that the Veteran has symptoms attributable to diabetic peripheral neuropathy of the right upper extremity: specifically, paresthesias and/or dysesthesias and numbness. Id. at 2. Additionally, the Board observes that in this August 2015 VA examination, the examiner reported that the Veteran’s diabetic peripheral neuropathy impacts his ability to work. The examiner reported that the Veteran reported issues with dropping items, difficulty picking ups small objects like his medications due to neuropathy symptoms. Id. at 6. The Board observes that the examiner also determined that the Veteran’s diabetic peripheral neuropathy has a functional impact on his daily life. The Board notes that November 2015 treatment records show that the Veteran has a history of diabetic mellitus type II; with neuropathy in 2015. These treatment records also report that the Veteran still has numbness of the right 4th and 5th fingers. See November 19, 2015 treatment records. Continuing our discussion with regards to a current disability: The Veteran testified at his December 2020 Board Hearing that he has numbness and tingling in his right little finger. The Veteran reported that this numbness and tingling exist in both hands, but that the left hand is not as bad as the right. The Veteran also reported that he continues to have numbness and paresis on the right side and that this condition has gotten worse. See Board Hearing transcript, pgs. 5-6. The Veteran further testified that two fingers on his right hand are totally numb. Now his left hand and little finger is numb. The Veteran stated that he “can't hardly pick up anything anymore.” The Veteran testified that he has “no grip, no dexterity” in his fingers at all. The Veteran further testified that he has pins and needles, and numbness on both hands, which he has had for the past two to three years. The Veteran testified that he has pain in both hands, and that he worries about driving because of the inability to use his fingers. Id. at 7 & 10. The Board notes that while the Veteran has not had a diagnosis of bilateral upper extremity neuropathy, a disability may be shown without an underlying diagnosis if there is pain that results in functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). The Board finds the Veteran’s testimony with regards to his pain in both hands, and functional loss demonstrated by dropping items due to tingling and numbness in both hands, difficulty picking ups small objects like his medications, not having a grip or dexterity in his finger and inability to drive, credible and persuasive as to establishing a current disability based on pain that results in functional impairment of earning capacity. See December 2020 Board Hearing transcript, pgs. 5-7 & 10. The Veteran is competent to report neurological disturbances in hands and fingers and the Board considers him credible in his reports to establish a current disability based on functional loss. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Further addressing the issue of functional loss, the Board underscores that the August 2015 VA Diabetic Sensory-Motor Peripheral Neuropathy examiner reported that the symptoms of the Veteran’s diabetic peripheral neuropathy impacts his ability to work. The August 2015 examiner further described the Veteran’s functional loss as having issues with dropping items, difficulty picking ups small objects, like his medications due to neuropathy symptoms. See August 2015 Diabetic Sensory-Motor Peripheral Neuropathy Examination, pg. 6. With respect to a secondary service connection, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Although the medical evidence is mixed with regards to upper extremity neuropathy (i.e., numbness of the right 4th and 5th fingers), it confirms that he has had diabetes mellitus, Type II since June of 2012. See August 8, 2012 treatment record (University Medical Associates re: June 2012 diagnosis). Treatment records also show that the Veteran has had lower extremity peripheral neuropathy since 2015. See November 19, 2015 treatment records. As referenced above in this decision, the Veteran is service connected for lower extremity peripheral neuropathy. In this case, the record does not suggest that there is another cause for the Veteran’s reported neurological disturbances. Thus, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s upper extremity neuropathy, to include pain with functional loss, is secondary to his service-connected diabetes mellitus, Type II. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board resolves reasonable doubt in the Veteran's favor to find the current bilateral upper extremity neuropathy, to include pain with functional loss, is related to his service-connected diabetes mellitus, Type II. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (lay evidence may be sufficient in and of itself to substantiate a service connection claim). (Continued on the next page.) Hence, after careful consideration of the foregoing, and the entire record, the Board finds the evidence is in a state of relative equipoise regarding whether the Veteran’s bilateral upper extremity neuropathy, to include pain with functional loss, is secondary to diabetes mellitus, Type II. Therefore, entitlement to service connection for bilateral upper extremity neuropathy, to include pain with functional loss, on a secondary causation basis to his service-connected diabetes mellitus, Type II is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.