Citation Nr: 21063646 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 13-28 277A DATE: October 15, 2021 REMANDED Entitlement to service connection for a bilateral upper extremity condition, to include as secondary to service-connected diabetes mellitus, type II, or as due to service on Southwest Asia, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1977 to April 1980, March 1981 to February 1983, and November 1990 to January 1992, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in January 2018, February 2020, and May 2021. The case has been returned to the Board at this time for further appellate review. Entitlement to service connection for a bilateral upper extremity condition, to include as secondary to service-connected diabetes mellitus, type II, or as due to service on Southwest Asia, is remanded. In May 2021, the Board remanded this matter to obtain clarification as to whether neuropathy of the upper extremities has been present at any point during the appeal period, and if so, what the etiology of those symptoms is. In this regard, the RO was directed to obtain an addendum opinion regarding the nature and etiology of any upper extremity neurological symptoms from a VA examiner. A VA opinion was obtained in June 2021 which the Board finds to be inadequate. First, the VA clinician improperly disregarded the Veteran's lay statements that she has experienced numbness and tingling in her upper extremities since 1991 solely on the basis that such symptoms were not recorded in the Veteran's contemporaneous medical records. Second, the VA clinician stated that the Veteran's symptoms started in her upper arms bilaterally, however, the Veteran has stated that her symptoms started in her fingers and hands in 1991. Thus, the June 2021 VA opinion is based on an inaccurate factual premise. Finally, the June 2021 VA clinician's opinion and answers to the questions presented appear to be internally inconsistent and thus, without further explanation, it is unclear to the Board whether the VA clinician determined if the Veteran's objective indications of a disability can be attributed to a known clinical diagnosis, or if the Veteran's disability pattern is a diagnosable, but medically unexplained chronic multi-symptom illness of unknown etiology. The Veteran was also afforded a VA examination in July 2021 which the Board finds is inadequate. Specifically, the July 2021 VA examination report reflects the examiner's opinion that the Veteran's complaints of neurological symptoms of the left and right upper extremities appear to be an undiagnosed condition at this time, however, the VA clinician did not address whether (1) neuropathy of the upper extremities has been present at any point during the appeal period, and (2) there is affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War. Therefore, remand for a new VA examination is warranted. Finally, the Board notes that the June 2021 VA clinician stated that the Veteran's claimed condition of bilateral upper extremity neuropathy can be easily and objectively diagnosed with a nerve conduction study/EMG which has yet to be provided. The July 2021 VA examination reflects that no EMG has been performed. Thus, remand for a new VA examination is warranted to conduct the necessary diagnostic testing to properly evaluate the Veteran's claim. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with a qualified clinician, preferably one who has not previously examined the Veteran, regarding the nature and etiology of the Veteran's bilateral upper extremity disability. Following examination of the Veteran, the examiner should identify all diagnosed bilateral upper extremity disabilities found during the time period on appeal. In doing so, the VA examiner should address the June 2021 VA opinion in which the VA clinician stated that the Veteran's claimed condition of bilateral upper extremity neuropathy can be easily and objectively diagnosed with a nerve conduction study/EMG. For each diagnosed bilateral upper extremity disability identified during the time period on appeal, the examiner should opine: a. If the etiology of the Veteran's condition is (1) inconclusive, (2) partially understood, or (3) fully understood. This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. b. If the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood. This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. c. If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's disability began in or is otherwise caused by the Veteran's active service? In addition, it is at least as likely as not (50 percent or greater probability) that Veteran's disability was (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected diabetes mellitus II. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the Veteran's diagnosed bilateral upper extremity disability prior to aggravation by the service-connected diabetes mellitus II. Please note, causation and aggravation are separate concepts and must be addressed independently. If no bilateral upper extremity disability is diagnosed during the time period on appeal, the examiner is asked to address the following: a. Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. §3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for her symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. b. If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. In providing these opinion, the examiner must specifically address the following: (1) a February 1999 VA examination report noting testimony of hand numbness since 1991 with an impression of numbness in the extremities; (2) a March 1999 VA examination report documenting the Veteran's complaints of intermittent numbness and coldness in the hands, and objective findings of mild decrease in vibration in the right knuckle; (3) a December 2010 VA examination noting symptoms of numbness in the upper extremities, evidence of sensory defect in the Veteran's right hand, and noting that the Veteran's tingling in her right upper extremity represents a disease with a clear and specific etiology and diagnosis, (4) a September 2013 private medical report reflecting symptoms of numbness, tingling, and sensitivity or pain in the hands and an assessment that the skin sensation changes could be associated with fibromyalgia, (5) a July 2021 VA examination reflecting that the Veteran's complaints of neurological symptoms of the left and right upper extremities appear to be an undiagnosed condition at this time. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so, however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.