Citation Nr: 21003672 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 18-27 370 DATE: January 22, 2021 ORDER Service connection for peripheral neuropathy (PN) of the right upper extremity (RUE) is denied. REMANDED Service connection for PN of the left upper extremity (LUE) is remanded. FINDINGS OF FACT 1. The Veteran had active service from April 1968 to April 1970 and from September 1971 to April 1976. 2. The Veteran died in October 2018 at the age of 70. In June 2019, the Regional Office (RO) recognized the Appellant as an eligible substitute claimant in the appeal. 3. At the time of his death, a diagnosis of RUE PN was not shown. CONCLUSION OF LAW RUE PN was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a procedural matter, in September 2020, the Board granted a July 2020 motion submitted by the Appellant to vacate a prior Board decision on the claims currently on appeal to allow for further development. The case has now been returned to the Board for further appellate action. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporaneous to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The record does not show that the Veteran had a confirmed diagnosis of RUE PN at the time of his death. In this regard, the Veteran underwent VA examinations in September 2016 and June 2017 prior to his death. The examiners diagnosed PN but found that it was limited to his lower extremities. The examiners further determined that the Veteran’s RUE was neurologically normal and that his RUE nerves did not demonstrate incomplete or complete paralysis indicative of PN. Finally, the June 2017 examiner opined that it was less likely that the Veteran’s claimed RUE PN was caused or aggravated either by service or by a service-connected disability, explaining that the examination found no evidence to support a diagnosis of RUE PN. Further review of the record reveals that, while the Veteran reported subjective LUE weakness in multiple medical treatment notes between July 2015 and April 2016, the evidence did not reflect similar symptoms in his RUE. Finally, in a September 2018 medical treatment note, the clinician reported that PN was not noted or diagnosed in either his LUE or RUE. The Appellant asserted in a September 2020 statement that, prior to his death, the Veteran described burning and pain in his legs and feet around 2001 that progressed to arm weakness and frequently dropping items bilaterally. The Appellant noted that 38 C.F.R. § 4.124a contemplated current disabilities based solely on subjective complaints. Lay witnesses are competent to report subjective symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. Moreover, under 38 C.F.R. § 4.124a, ratings for PN may be assigned where the symptoms are “wholly sensory” or based on subjective complaints. However, diagnostic codes under 38 C.F.R. § 4.124a quantify the current severity of service-connected disabilities rather than establishing the etiological relationship necessary for service connection. Moreover, lay witnesses are not competent to diagnose RUE PN. Accordingly, the Appellant’s argument is assigned lesser weight. As noted above, service connection may only be granted for disabilities that were present at the time of the Veteran’s death. As there was no confirmed diagnosis of RUE PN at the time of his death, service connection is not warranted, and the appeal is denied. The Board has considered the lay statements that were submitted regarding the Veteran’s claimed RUE PN. As noted above, lay witnesses are competent to report symptoms and describe their observations because this requires only personal knowledge as it comes to them through their senses. However, they are not competent to diagnose RUE PN, or offer opinions as to its etiology due to the medical complexity of the matters involved. Such competent evidence has been provided by the medical personnel who examined the Veteran prior to his death and by post-service medical treatment records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the lay statements that have been submitted. Finally, the Appellant has not raised any other issues nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For the above reasons, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. REASONS FOR REMAND In a June 2017 VA examination, the examiner opined that it was less likely than not that the Veteran’s LUE PN was caused or aggravated either by service or by a service-connected disability, explaining that the examination found no evidence to support a diagnosis of LUE PN. However, while not explicitly diagnosed, the June 2017 examination revealed LUE PN characterized by mild incomplete paralysis of the left radial nerve. Accordingly, the June 2017 VA examination must be clarified to assess whether the Veteran had a then-current diagnosis of LUE PN and, if so, to determine the nature and etiology of the disorder. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician as to whether the findings of the Veteran’s June 2017 VA examination, to include mild incomplete paralysis of the left radial nerve, reflect a then-current diagnosis of LUE PN. The claims file must be made available to the examiner for review. 2. Next, if a then-current diagnosis is shown, the examiner should provide an opinion based on a review of the entire claims file as to whether it is at least as likely as not (a 50 percent probability or greater) that any then-currently present LUE PN: a) was etiologically related to military service; and b) was caused or aggravated by a service-connected disorder, to include diabetes mellitus. The rationale for all opinions must be provided. 3. After the development requested has been completed, the Agency of Original Jurisdiction (AOJ) should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. M. Miller Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, 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.