Citation Nr: 21005815 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-27 868 DATE: February 2, 2021 ORDER Entitlement to an effective date earlier than December 3, 2009, for the award of service connection for diabetic neuropathy of the left upper extremity is denied. Entitlement to an effective date earlier than July 17, 2017 for the award of service connection for diabetic neuropathy of the right upper extremity is denied. FINDINGS OF FACT 1. The Veteran did not submit any correspondence prior to August 29, 2008 indicating an intent to claim entitlement to service connection for diabetic peripheral neuropathy of the left upper extremity. 2. The Veteran did not meet the requirements for the benefits sought for left upper extremity diabetic peripheral neuropathy prior to December 3, 2009. 3. The Veteran did not submit any correspondence prior to August 29, 2008 indicating an intent to claim entitlement to service connection for diabetic peripheral neuropathy of the right upper extremity. 4. The Veteran did not meet the requirements for the benefits sought for right upper extremity diabetic peripheral neuropathy prior to July 17, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date for the award of service connection for left upper extremity peripheral neuropathy prior to December 3, 2009 have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date for the award of service connection for right upper extremity peripheral neuropathy prior to July 17, 2017 have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1967 to June 1969. His decorations include the Purple Heart. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for peripheral neuropathy of both the left and right upper extremities, effective July 17, 2017. In September 2019 the Board granted an earlier effective date of December 3, 2009, for service connection for peripheral neuropathy of the left upper extremity and denied an effective date earlier than July 17, 2017 for diabetic neuropathy of the right upper extremity. The Veteran exercised his right to appeal the decision to the Court of Appeals for Veterans Claims (CAVC). In May 2020 CAVC granted a Joint Motion for Partial Remand (JMPR) vacating the Board decision and remanding the Veteran’s earlier effective date claims. Effective Dates The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a Veteran shall be the day following the date of discharge or release. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). The reference above to “the date entitlement arose” is not defined in the current statute or regulation. The Court has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Entitlement to an effective date earlier than December 3, 2009, and July 17, 2017 for the award of service connection for diabetic neuropathy of the left and right upper extremities, respectively. In August 29, 2008, the Veteran filed a claim for service connection of peripheral neuropathy of the upper extremities. In March 2009, the RO denied service connection for peripheral neuropathy of the upper extremities and granted service connection for diabetes mellitus type 2, effective August 29, 2008, whereupon the Veteran appealed. In January 2015, the Board denied service connection for peripheral neuropathy of the upper extremities. The Veteran exercised his right to appeal and in April 2016, CAVC vacated the January 2015 denial and remanded the appeal. In May 2017, the Board remanded the claims for further development. In December 2017, the RO granted service connection for peripheral neuropathy of both the left and right upper extremities, effective July 17, 2017. In a September 2019 rating decision, the RO granted an earlier effective date for left upper extremity peripheral neuropathy back to December 3, 2009. The Veteran contends that he is entitled to an effective date for service connection of both disabilities of August 29, 2008 based on the claim date. There is no claim or document submitted by the Veteran evidencing an intention to file a claim for an upper extremity nerve disability prior to August 28, 2008, nor does the Veteran assert a date is warranted prior the August 28, 2008. This is more than one year after separation from service and therefore is the date of claim for the purpose of 38 C.F.R. § 3.400. The next question before the Board is on what dates entitlement arose for these disabilities. In order to determine when the claimant met the requirements for the benefits sought, the Board must identify when a “current disability” was ascertainable to meet the criteria for service connection at 38 C.F.R. § 3.303. The Veteran was afforded a VA diabetes mellitus examination in November 2008. He complained of “intermittent feeling of his hands where they have a sensation of being asleep but this has been present for approximately two years and this sensation disappears when he flexes and extends his fingers and exercises his fingers. It usually occurs almost every day.” Physical examination revealed normal sensation to light touch. The examiner diagnosed peripheral neuropathy in the left thigh, but did not diagnosis it for the hands. Instead, he opined: “His numbness of his hands probably did not reflect a peripheral neuropathy because they are so readily relieved by flexion and extension of the hands.” The CAVC JMR in May 2020 directed the Board to adequately address whether this examiner’s opinion was equivocal or speculative, given the use of the word “probably.” The Board finds that the November 2008 examiner’s use of the word “probably” does not render the opinion too speculative or equivocal to serve as competent medical opinion evidence. “Probably” is defined as “in all likelihood; very likely.” Webster’s New Universal Unabridged Dictionary 1542 (1996). The word is derived from “probable,” defined as “likely to exist, be true, or happen.” BLACK’S LAW DICTIONARY 1454 (11th ed. 2019). The evidentiary standard here is “at least as likely as not” and is often paraphrased to examiners as a question of whether there is a 50 percent or more probability. The plain meaning of the word bolstered by the law dictionary definition, and how it is used in the opinion, supports a finding that the opinion is made with the level of certainty required to serve as competent medical evidence. The examiner’s opinion conveys that it is very likely (more than at least as likely as not) that the symptoms experienced by the Veteran in his hands did not reflect peripheral neuropathy. Therefore, the November 2008 VA examiner’s opinion that peripheral neuropathy was not present in the upper extremities is competent medical evidence. Further, the opinion is supported by a rationale, explaining that the conclusion is based on the fact that the symptoms are relieved by flexing and extending the hands. Further, there was normal sensation to light touch, in contrast to the thigh where peripheral neuropathy was diagnosed, which showed a definite lack of sensation during testing. The Boards finds that the November 2008 opinion is adequate and is entitled to substantial probative weight, as it provided a clear conclusion with supporting data, and reasoned medical explanations connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Left upper extremity To warrant an earlier effective date for the left upper extremity, the evidence must show that entitlement arose (a current disability was present) prior to December 3, 2009. In a VA physical therapy consult report from June 2009 the Veteran reported that his hands fall asleep when he sleeps on his back. Physical therapy was being sought for shoulder pain that onset a few months prior. The assessment was that the shoulder symptoms were likely related to a shoulder impingement or adhesive capsulitis. There is no indication or mention of neuropathy. VA treatment records show continued physical therapy for the shoulder following this appointment; none mention neuropathy of the upper extremities. In a VAMC primary care note in October 2009 the Veteran complained of pain in both upper extremities, from both shoulders extending to his hands. He also reported numbness in both hands at night that had existed for a few months. He still had shoulder pain but had completed physical therapy. He also complained of neck pain. On examination, Tinel’s sign (test for carpal tunnel) was negative for both hands. An Electromyography (EMG) diagnostic study was ordered. In a neurology consult on December 3, 2009, the Veteran complained of numbness and tingling in the upper extremities which radiated from his shoulders to his hands and was more predominant on the left side. The Veteran wondered to the neurologist if this could be related to neuropathy of diabetes. The neurologist did not have the EMG and nerve conduction velocity (NCV) studies referenced, but indicated that the Veteran reported only the lower extremities were done and no EMG or NCV had been conducted for the upper extremities yet. The neurologist assessed that the Veteran’s degenerative joint disease of the cervical spine could be causing radiculopathy in the upper extremities. “It is possible that he also might have elements of neuropathy but this remains to be seen and will depend on what the report [says].” The neurologist ordered EMG and NCV of the upper extremities. The EMG/NCV was performed in January 2010. It documented left mild median sensory neuropathy at the wrist “as is seen with carpal tunnel syndrome.” However, it found no bilateral ulnar sensorimotor or radial sensory neuropathy, no right median sensorimotor neuropathy, and no generalized peripheral polyneuropathy affecting the upper limbs bilaterally. There was no left or right cervical radiculopathy by needle EMG by needle EMG, “which does not, however, rule-out a purely sensory radiculopathy.” The clinical impression was: “Consider clinical diagnosis of cervical radiculitis without radiculopathy (i.e., likely nerve irritation (‘radiculitis’) without needle EMG evidence of axonal nerve damage (‘radiculopathy’)), given neck pain radiating into the upper limb (i.e., nerve distribution).” The evidence dated prior to December 3, 2009, including the October 2009 treatment record, shows reports of pain from his shoulders to his hands and numbness in his hands. The Veteran is competent to report these symptoms and the Board has no reason to doubt his credibility. However, the Veteran has not shown that he has the medical expertise, education, or training to competently diagnose peripheral neuropathy. The Veteran’s lay evidence is outweighed by the adequate and probative November 2008 medical opinion that these symptoms were not indicative of peripheral neuropathy. The Board finds the VA examiner’s opinion to be competent, credible and highly probative. The preponderance of the probative evidence shows that entitlement to service connection for the left upper extremity peripheral neuropathy did not arise prior to December 3, 2009. As December 3, 2009, is the later of the two dates (the other being the August 29, 2008 date of claim), an earlier effective date for peripheral neuropathy of the left upper extremity is denied. Right upper extremity Following the January 2010 EMG/NCV, VA treatment records show the Veteran continued to report pain from the shoulders to hands with numbness of his hands at night. See, e.g., May 2010 VA primary care note. A May 2012 VA examiner conducting a diabetes examination found that the Veteran did not have diabetic peripheral neuropathy as a complication. In September 2015, the Veteran underwent a VA examination specifically for diabetic peripheral neuropathy. The examiner noted the established peripheral neuropathy of the lower extremities. The Veteran reported that he had experienced numbness in his hands since 2008. It was limited to the fingers, mostly the little ring and middle fingers and felt like the fingers were asleep. It affected mostly the left hand. He did feel some pain in the upper arm but did not have numbness or burning. On examination for peripheral neuropathy symptoms, the Veteran denied pain, paresthesias or dysesthesias in the upper extremities. He endorsed mild numbness in the left upper extremity, but denied it in the right. He had full strength, decreased deep tendon reflexes, and normal light touch testing with the exception of decreased sensation in the left hand/fingers. Position sense and cold sensation were normal with no muscle atrophy or trophic changes. Vibration sensation was decreased in the DIP joint of the right and left index fingers. Based on the foregoing and a thorough review of the January 2010 EMV/NCV report, the examiner concluded that the Veteran did not have upper extremity diabetic peripheral neuropathy, other than mild incomplete paralysis of the left ulnar nerve. The Veteran was scheduled for an EMG in September 2015 “to rule out peripheral neuropathy” of the bilateral lower extremities and upper left extremity but declined the test upon arrival for the appointment to do the testing. At an October 2015 VA neurology consult, the Veteran reported intermittent numbness in his hands, especially the left ulnar distribution. On examination, Tinel’s sign was negative bilaterally, there was diminished pinprick sensation to the left fingers only. The neurologist diagnosed left ulnar neuropathy, “which might simply be due to position.” VA neurologist ordered an EMG of the left upper extremity but not the right. No symptoms or diagnosis for the right upper extremity were indicated. Another EMG/NCV of the bilateral upper extremities was completed in August 2016. The Veteran was complained of numbness in his hands that was getting worse. Physical examination showed normal strength, sensory intact to light tough, and positive Tinel and Phalen signs bilaterally. Interpretation of the test results indicated electrodiagnostic evidence of mild carpal tunnel syndrome in the left upper extremity and no evidence of neuropathy in the right upper extremity. There are no additional treatment records or evidence supporting a diagnosis of right upper extremity peripheral neuropathy prior to the July 17, 2017 VA examination that diagnosed peripheral neuropathy and led to the grant of service connection for this disability. The Veteran is competent and credible to report the symptoms of pain, numbness, and sensation of falling asleep in the left upper extremity prior to July 17, 2017. However, objective electrodiagnostic testing in January 2010 and August 2016 found no peripheral neuropathy of the right upper extremity. Additionally, VA examiners in November 2008 and September 2015 found no peripheral neuropathy. Unlike the examiners and interpreters of the EMG/NCV testing, the Veteran has not shown that he has the medical expertise, education, or training to competently diagnose peripheral neuropathy. Thus, the Veteran’s lay evidence is outweighed by the adequate and probative medical opinions and EMG/NCV testing establishing that there was no right upper extremity peripheral neuropathy. The preponderance of the probative evidence shows that entitlement to service connection for right upper extremity peripheral neuropathy did not arise prior to July 17, 2017. As July 17, 2017, is the later of the two dates (the other being the August 29, 2008 date of claim), an earlier effective date for peripheral neuropathy of the right upper extremity is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allen M. Kerpan 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.