Citation Nr: 21069247 Decision Date: 11/18/21 Archive Date: 11/17/21 DOCKET NO. 19-34 723 DATE: November 18, 2021 ORDER Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus, type II, is denied. REMANDED Entitlement to a disability evaluation in excess of 20 percent from October 16, 2017 to May 20, 2018 and in excess of 10 percent thereafter for right ankle fracture with degenerative arthritis is remanded. Entitlement to a disability evaluation in excess of 20 percent from October 16, 2017 to May 20, 2018 and in excess of 10 percent thereafter for left ankle fracture with degenerative arthritis is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had right upper extremity peripheral neuropathy at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for right upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus, type II, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1963 to July 1991. In August 2021, the Veteran failed to appear for his requested hearing before the Board. The Veteran's hearing request is deemed withdrawn because he failed to appear for the scheduled hearing, has not presented good cause for having failed to appear, and has not requested to reschedule the hearing. See 38 C.F.R. §§ 20.703, 20.704. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus, type II. The Veteran asserts that he has upper right extremity peripheral neuropathy due to his service-connected diabetes mellitus, type II. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Service connection may be also granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current disability that began during service, is at least as likely as not related to an in-service injury, event, or disease, or is proximately due to or aggravated by a service-connected disability. The Board concludes that the Veteran does not have a current diagnosis of right upper extremity peripheral neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In September 2016, the Veteran submitted a Diabetic Sensory-Motor Peripheral Neuropathy Disability Benefits Questionnaire (DBQ) that indicated the Veteran did not have upper extremity peripheral neuropathy. In July 2020, the Veteran was evaluated by a VA examiner who also determined that the Veteran did not have a diagnosis of right upper extremity peripheral neuropathy. Further, despite consistent treatment beginning in April 2015, VA treatment records do not contain any complaints regarding pain, tingling, or numbness of the Veteran's right upper extremity nor a diagnosis of right upper extremity peripheral neuropathy. Indeed, at no time during the period on appeal has the Veteran asserted that he has any upper right extremity peripheral neuropathy symptoms or pain beyond the inclusion of disability on his claim and notice of disagreement forms. Further, the only time peripheral neuropathy is generally noted in the Veteran's VA treatment record is during a record review for authorization of a medication in August 2018. See August 2018 VA Pharmacy Consult (noting the Veteran has peripheral neuropathy that affects his dexterity.) The Board notes that in Saunders v. Wilkie, the Federal Circuit held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment that affects earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Here, however, the Veteran has reported not reported any pain in the right upper extremity at any time during the period on appeal. Indeed, he has not appeared to report any signs or symptoms of peripheral neuropathy at all in his right upper extremity, nor of any resulting functional impairment in earning capacity. While the Veteran believes he has a current diagnosis of right upper extremity peripheral neuropathy, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education regarding neurological testing and the interaction of multiple system of the bodies. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. For all the above reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for right upper extremity peripheral neuropathy. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a disability evaluation in excess of 20 percent from October 16, 2017 to May 20, 2018 and in excess of 10 percent thereafter for right ankle fracture with degenerative arthritis is remanded. 2. Entitlement to a disability evaluation in excess of 20 percent from October 16, 2017 to May 20, 2018 and in excess of 10 percent thereafter for left ankle fracture with degenerative arthritis is remanded. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. While the record contains a contemporaneous VA examination regarding the Veteran's bilateral ankle disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). See May 2018 VA Examination. During the VA examination, the Veteran endorsed functional loss during flare-ups and repetitive use. The Veteran indicated that the loss of range of motion was variable during a flare-up or upon repetitive use, which at its worst prevented him from moving his ankle at all. The VA examiner indicated that she was unable to describe the functional loss in terms of range of motion, but she did not indicate if this was due to lack of knowledge within the medical community. Further, it appears that the VA examiner did not attempt to elicit relevant information regarding the frequency and duration of the Veteran's described flares preventing total ankle movement. Thus, remand is warranted so that the Veteran may be afforded another VA examination. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral ankle disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or upon repetitive use. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. Further, the examiner should also specifically address the functional impairment, if any, during the Veteran's reported history of flare-ups. Upon review of the record, and interview and examination of the Veteran, the examiner should discuss the frequency, severity, and duration of the Veteran's reported historical flare-ups, and provide an estimate of range of motion lost, if any, during a period of flare-up or after repetitive use, in degrees. If the Veteran does not suffer from a loss of range of motion during flare-ups, this should be clearly indicated. For any of the above requests, if it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bristow Williams, 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.