Citation Nr: 21076741 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 13-12 502 DATE: December 27, 2021 ISSUE Entitlement to service connection for upper extremity neuropathy. ORDER Entitlement to service connection for right upper extremity neuropathy is denied. Entitlement to service connection for left upper extremity neuropathy is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against a finding that the Veteran has had a diagnosis of right upper extremity neuropathy at any time during the appeal. 2. The preponderance of the evidence of record is against a finding that the Veteran has had a diagnosis of left upper extremity neuropathy at any time during the appeal. CONCLUSIONS OF LAW 1. Right upper extremity neuropathy was not incurred in or otherwise related to service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. 2. Left upper extremity neuropathy was not incurred in or otherwise related to service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army National Guard from October 2004 to January 2006 and from May 2009 to July 2010, to include service in the Southwest Asia theater. The Veteran also had a period of active duty for training (ACDUTRA) from October 1991 to May 1992. His decorations include the Combat Action Badge. This is matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2011 and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, IN. In May 2020, the Veteran was afforded a Video Conference Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. The matter was previously before the Board in August 2020 and March 2021. In the August 2020 decision, the Board, in pertinent part, reopened the Veteran's claim for entitlement to service connection for neuropathy of the upper and lower extremities and remanded the claims for further development, to include a VA examination to determine the etiology of the Veteran's upper and lower extremity neuropathy. The Veteran was subsequently granted service connection for left and right lower extremity peripheral neuropathy in a January 2021 rating decision. See January 26, 2021 Rating Decision. Therefore, that issue is no longer before the Board. In the March 2021 decision, the Board remanded the Veteran's claim of entitlement to service connection for his bilateral upper extremities for the purpose of obtaining an addendum VA medical opinion. The addendum VA medical opinion was obtained in September 2021. The matter has been properly returned to the Board for appellate consideration. The Board is satisfied that there has been substantial compliance with the Board remand. Thus, no further action is required. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for upper extremity neuropathy. The Veteran asserts that his upper extremity neuropathy began during service and has continued since separation from service. See May 2020 Board Hearing transcript, pg. 5. At his May 2020 Board Hearing, the Veteran has testified that he began experiencing upper extremity neuropathy symptoms (although not as bad as in his lower extremities) while on active duty in Iraq. The Veteran testified that these symptoms have been with him in some form since 2005. Id. at pgs. 5-6. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Secondary service connection is also available for those disabilities which are caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (secondary service connection available for disabilities which are caused or aggravated by a service-connected disability). Proof of a current disability is a threshold to establishing service-connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). For reasons that will be discussed below, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of right or left upper extremity neuropathy at any time during the appeal. Examinations The Veteran was afforded a general medical examination in August 2010 regarding his complaint of peripheral neuropathy. The Veteran discussed his complaint of numbness and tingling in the lower extremities beginning in the middle-1990's. The Veteran did have symptoms of lower extremity neuropathy. The examiner recorded however that the Veteran did not have symptoms relative to his upper extremities. The VA reported that the neurological examination in the upper extremities was normal. See August 26, 2010, General Medical Examination, pgs. 1-2. The Veteran was afforded an October 2020 Diabetic Sensory-Motor Peripheral Neuropathy examination to determine the etiology of his upper extremity neuropathy claim. The examiner noted review of the Veteran's claims folder and his medical history. The examiner reported that the examination was in-person. The October 2020 examiner noted the Veteran's diagnosis of diabetic peripheral neuropathy in 2007. October 13, 2020, Diabetic Sensory-Motor Peripheral Neuropathy examination, pgs. 1-2. In this October 2020 examination, the Veteran denied having constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness of the right and left upper extremities. Id. at pgs. 2-3. The October 2020 examiner reported that the Veteran's left and right upper extremities were normal on reflex and sensory testing. Id. at pg. 3-5. The examiner determined that the Veteran did have lower extremity diabetic peripheral neuropathy. The examiner concluded that the Veteran did not have an upper extremity diabetic peripheral neuropathy. The examiner also determined that the Veteran's diabetic peripheral neuropathy did not impact his ability to work. Id at pgs. 5-6. In a follow-up medical opinion, the October 2020 examiner rendered a negative nexus opinion with respect to the Veteran's neuropathy. See October 13, 2020 Medical Opinion, pgs. 1-2. Because the October 2020 examiner did not specifically comment on the Veteran's upper extremity symptoms in this medical opinion, particularly in relation to multiple treatment records that cite the presence of neuropathy during the course of appeal, the Board remanded the Veteran' claim in March 2021for an addendum VA medical opinion. Pursuant the Board's remand, the Veteran was afforded a September 2021 Addendum Medical Opinion. In this September 2021 addendum medical opinion, the examiner noted review of the Veteran's claims file and medical history, including treatment records that show a diagnosis of neuropathy on the Axis III. See e.g., May 14, 2012 Psychiatric Attending Note; April 29, 2013 treatment records; March 10, 2014 Mental Health Discharge Note. The examiner noted review medical records from private clinicians and VA treatment clinicians. See September 29, 2021, Medical Opinion, pg. 1. After review of the Veteran's claims file and medical history, with particular attention given to references of neuropathy in treatment records outlined above, the examiner rendered a negative nexus opinion to service. The examiner opined that it is not at least as likely as not that the Veteran had an upper extremity neuropathy that began during any period of active service, ACUDTRA, or INACDUTRA, or that it manifested within a year after separation or is related to an injury of disease during a period of service. The September 2021 examiner determined that the Veteran currently has no diagnosis of upper extremity peripheral neuropathy. The examiner provided the following rationale to support this negative nexus opinion: Hearing transcript May 22, 2020 documents Veteran's description of neuropathy symptoms that began in 2005 in Iraq, and that he attributed to intense heat. He described his symptoms as being primarily in his feet..."it's most noticeable in my feet". Regarding "pins and needles in upper extremities, he reported "not as bad". There is no other documentation of any upper extremity neuropathic symptoms/physical exam findings in all records reviewed. His mild upper extremity symptoms (that are no longer present) do not confirm a diagnosis of upper extremity peripheral neuropathy. While the Veteran answered "yes" to question about symptoms that "have been there in some form since 2005, the Veteran reported only lower extremity peripheral neuropathy symptoms at time of his Compensation & Pension examination in October 2020. Clinical documents from private and VA clinicians cited above refer only to lower extremity neuropathy that has been attributed to alcoholic peripheral neuropathy, and more recently, a superimposed diabetic peripheral neuropathy affecting lower extremities. Axis III diagnoses on mental health notes document "neuropathy," though details, such as type of neuropathy and location are not noted. See September 29, 2021 Medical Opinion, pgs. 2-3. With respect to secondary service connection, it follows that the September 2021 examiner concluded that the Veteran's upper extremity neuropathy was not "caused" or "aggravated" by any service-connected disability." The examiner reasoned that the Veteran has not been diagnosed with, nor does he have symptoms of an upper extremity peripheral neuropathy. See September 2021 Medical Opinion, pg. 3. Analysis In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board finds the September 2021 Addendum Medical Opinion, in conjunction with the examination findings of the October 13, 2020, Diabetic Sensory-Motor Peripheral Neuropathy examination, probative and persuasive as to whether the Veteran had a diagnosis of upper extremity neuropathy during the course of this appeal for the following reasons: (1) the September 2021 Addendum Opinion considered the Veteran's lay contentions of upper extremity neuropathy beginning during service, (2) the September 2021 addendum opinion encompassed a review of treatment records referencing neuropathy during the course of this appeal and (3) the October 13, 2020, Diabetic Sensory-Motor Peripheral Neuropathy examination included an in-person examination that reported on the findings of this Veteran's right and left upper extremity neurological symptoms. After considering the Veteran's lay contentions, combined with a review of the Veteran's medical history, including treatment records referencing neuropathy on the Axis III, the September 2021examiner concluded that the clinical documents from private and VA clinicians cited above refer only to lower extremity neuropathy that has been attributed to alcoholic peripheral neuropathy, and more recently, a superimposed diabetic peripheral neuropathy affecting lower extremities. The September 2021 examiner explained that that Axis III diagnoses on mental health notes document "neuropathy," though details, such as type of neuropathy and location are not noted. The Board observes that the probative evidence of records indicates that the Veteran has a diagnosis pertaining to lower extremity bilateral neuropathy. All other references to the Veteran's neuropathy are identified in treatment records referencing neuropathy on the Axis III (general medical conditions that are potentially relevant to a mental disorder). However, physicians that have specifically examined the Veteran to determine the nature and etiology of his neuropathy have concluded that the Veteran does not have a diagnosis of right or left upper extremity neuropathy. See e.g., September 2021 Addendum Opinion, pgs. 2-3. The Board observes that no VA examiner has indicated the presence of bilateral upper extremity neuropathy during the course of this appeal. See August 26, 2010, General Medical Examination, pg. 2 re: normal neurological examination of the upper extremities; October 13, 2020 Diabetic Sensory-Motor Peripheral Neuropathy examination, pg. 2 re: no upper right or left extremity diabetic peripheral neuropathy; September 29, 2021 Addendum Opinion, pgs. 2-3 re: no diagnosis of upper extremity peripheral neuropathy. The Board is also cognizant of the holding in Saunders v. Wilkie which stated that, where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Recently, the Court expanded this ruling and held that Saunders is not limited to pain, such that a disability for VA purposes includes any condition that results in functional impairment of earning capacity. Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). Notwithstanding, even under the holdings in Saunders and Martinez-Bodon, the Board finds that the probative evidence of record does not indicate that the Veteran's upper extremity neuropathy symptoms rise to the level of impacting earning capacity sufficient to be reasonably interpreted as a current disability under the governing statutes and regulations. See also, October 13, 2020 Diabetic Sensory-Motor Peripheral Neuropathy examination, pgs. 2-3 & 6 re: no functional impairment. Lay statements The Board has considered the Veteran's statements that he began experiencing upper extremity neuropathy symptoms while on active duty in Iraq. The Board notes however that while the Veteran is competent to report symptoms susceptible of lay observation, the Veteran is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Thus, the Board gives greater weight to the objective medical evidence outlined above in this case, which indicates that the Veteran does not have a current diagnosis of right or left upper extremity neuropathy, nor has he had a diagnosis of right or left upper extremity neuropathy at any point in this appeal. In summary, the Board finds that there is no competent lay or medical evidence to indicate that the Veteran has a current neurological disorder of the bilateral upper extremities or that he is currently receiving treatment for such. Stated another way, the preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of right or left upper extremity neuropathy at any time during the appeal. Proof of a current disability is a threshold to establishing service-connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). 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.