Citation Nr: 21074525 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-42 779 DATE: December 15, 2021 ORDER Service connection for diabetic neuropathy is granted. REMANDED Service connection for a neurological disability, other than diabetic neuropathy, manifested by symptoms like involuntary movement and twitching, difficulty gripping, frequent falling, and weakness with various prior diagnoses (e.g., sensory neuropathy, tardive dyskinesia, and bilateral carpal tunnel syndrome) is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran has been diagnosed with diabetic neuropathy, and he is service-connected for type 2 diabetes mellitus. CONCLUSION OF LAW The criteria for service connection for diabetic neuropathy are met. 38 U.S.C. §§ 1110, 1113, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b), 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1967 to May 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision. The Board previously remanded this appeal in November 2018 and May 2021. The Board notes that the Veteran originally claimed only peripheral neuropathy of the upper extremities. However, a review of the record shows he has consistently complained of neurological symptoms in both upper and lower extremities (including in examinations in conjunction with this appeal) and, therefore, has recharacterized the claim on appeal to afford him a sympathetic review. Moreover, as explained further below, the Board finds the evidence supports a grant of service connection for diabetic neuropathy and, therefore, has bifurcated the original broader appeal for any peripheral neuropathy to allow for that award while still considering entitlement to service connection for peripheral nerve conditions other than diabetic neuropathy. 1. Service connection for diabetic neuropathy Secondary service connection may be established for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To substantiate a claim of secondary service connection there must be evidence of: (1) a present disability (for which service connection is sought); (2) an already service-connected disability; and (3) competent evidence that the already service-connected disability caused or aggravated the disability for which service connection is sought. Here, the Veteran is service-connected for type 2 diabetes mellitus and VA treatment records dating back to March 2018 consistently note complaints of "burning" peripheral neuropathy that providers repeatedly assessed as "[diabetes mellitus] type 2 with burning peripheral neuropathy." Similarly, the most recent May 2021 VA examination report, despite providing little explanation for its ultimate negative etiological findings for the Veteran's overall claim, did find his neurological complaints and symptoms to be more consistent with, among other diagnoses, diabetic neuropathy. In fact, the only contradictory medical opinion evidence in this respect, from an April 2017 VA examiner, was already found inadequate for rating purposes and could not have been informed by a review of the more recent treatment records repeatedly confirming diabetic neuropathy (mentioned above). Consequently, the Board finds the evidence is at least in relative equipoise as to whether the Veteran has diabetic neuropathy, which is explicitly etiologically related to an already service-connected condition. Resolving the remaining doubt in the Veteran's favor, service connection for such condition must be granted under 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Service connection for a neurological disability (other than diabetic neuropathy) manifested by symptoms like involuntary movement and twitching with resultant functional impairment (e.g., difficulty gripping, frequent falling, weakness, etc.) is remanded. A review of the Veteran's claims (both in statements directly supporting this appeal and in clinical settings) shows complaints of symptoms that seem distinct from those commonly associated with diabetic or other peripheral neuropathy, such as involuntary movements or twitching of both upper and lower extremities. Records throughout the file also associate such complaints with significant functional impairment (e.g., a November 2013 disability benefits questionnaire (DBQ) noting "involuntary muscle jerking that affects activity [and] sleep" and "chronic pain in [the] upper and lower extremities" with "some gait disturbance" and frequent falling and a more recent May 2021 VA examination report noting "uncontrolled movements with facial grimacing and movements of his limbs" that "interfere with coordination and ability to hold on to coffee cups and other such items" and "have been substantial enough that he has lost his balance and fallen because of them.") While there is no clarity as to the specific diagnosis applicable to this constellation of symptoms and impairments, given the presence of several non-diabetic neurological diagnoses of record (e.g., a May 2021 examination report finding his symptoms are consistent with tardive dyskinesia, the November 2013 DBQ and several other treatment records documenting a history of carpal tunnel syndrome and restless leg syndrome in addition to peripheral neuropathy) and the competent, consistent lay reports of functional impairment, the Board finds the evidence certainly supports a current disability for VA purposes, regardless of what the precise diagnostic posture is. See Saunders v. Wilkie, 886 F.3d 1356, 1367-8 (Fed. Cir. 2018) (holding that pain, alone, can constitute a disability if it is shown to result in functional impairment). What remains to be shown is whether the Veteran's current disability, however diagnosed, might be related to either his military service (including presumptive herbicide exposure given his confirmed qualifying Vietnam service) or his other service-connected disabilities (particularly given his explicit allegation that they may be a secondary consequence of medication for service-connected psychiatric and neurological conditions). Despite the two prior remands, there is still no adequate VA examination or opinion addressing these concerns. The most recent May 2021 VA examination and opinion simply noted that the Veteran has no current peripheral neuropathy and that his symptoms were consistent with tardive dyskinesia and diabetic neuropathy, and did not address the nexus or etiology of either of those conditions. Consequently, clarification is needed. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an in-person or telehealth (whichever is appropriate) examination by a neurologist or other appropriate physician to determine the likely cause of his claimed neurological disability manifested by a constellation of symptoms, INCLUDING BUT NOT LIMITED TO involuntary movement and twitching causing functional impairment (e.g., difficulty gripping, frequent falling, weakness, etc.). For purposes of this examination, the examiner should note that A CURRENT DISABILITY IS CONCEDED UNDER THE LAW based on such symptoms and impairment. Based on a review of the record, examination of the Veteran (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF ALL CLAIMED SYMPTOMS), and any tests or studies deemed necessary, the examiner must respond to the following: (a.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the Veteran's disability manifested by symptoms such as involuntary movement and twitching of all extremities with resultant functional impairment (e.g., difficulty gripping, frequent falling, weakness, etc.) is related to his military service, TO INCLUDE presumed herbicide agent exposure therein? (b.) Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that the same disability is CAUSED BY OR PROXIMATELY DUE TO his service-connected posttraumatic stress disorder (PTSD), vascular dementia (or neurocognitive disorder), diabetes mellitus, tinnitus, hearing loss, back disability, obstructive sleep apnea, hypertension, or erectile dysfunction OR any associated medications or treatments? Is it AT LEAST AS LIKELY AS NOT (A 50 PERCENT PROBABILITY OR GREATER) that this disability is AGGRAVATED (WORSENED BEYOND ITS NATURAL PROGRESSION, REGARDLESS OF PERMANENCE) BY his service-connected posttraumatic stress disorder (PTSD), vascular dementia (or neurocognitive disorder), diabetes mellitus, tinnitus, hearing loss, back disability, obstructive sleep apnea, hypertension, or erectile dysfunction OR any associated medications or treatments? The examiner should specifically consider and discuss the Veteran's allegation that these involuntary movements and twitching began only after he started taking Zoloft/Sertraline to treat his psychiatric condition. All opinions must include a detailed rationale. Providing an opinion or conclusion without enough explanation will delay processing of the claim and require further clarification. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.