Citation Nr: 21010743 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-35 689 DATE: February 25, 2021 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for upper extremity neuropathy is granted. Service connection for a low back disability is denied. REMANDED Entitlement to service connection for upper extremity peripheral neuropathy is remanded. FINDINGS OF FACT 1. The Veteran did not appeal the October 2011 denial of his claim of service connection for upper extremity diabetic neuropathy, and new and material evidence was not received within one year of that decision, but new and material evidence has been received since. 2. The weight of the evidence is against finding the Veteran’s current back disability is related to service. CONCLUSIONS OF LAW 1. The ¬¬October 2011 Regional Office denial of the claim for service connection for upper extremity diabetic neuropathy became final, but new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from March 1968 to February 1970. The issue of reopening the claim of service connection for upper extremity neuropathy was returned to the Board after the Court of Appeals for Veterans’ Claims granted a joint motion for partial remand (JMPR) in September 2020. The issue of service connection for the low back was remanded by the Board in August 2019 along with the claims of service connection for retinopathy and hypertension, which were granted in full in a subsequent November 2020 rating decision. 1. New and material evidence for the claim of service connection for upper extremity neuropathy Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Regional Office (RO) issued a denial of the Veteran’s claim for service connection for upper extremity peripheral neuropathy in the October 2011 rating decision. The RO found the Veteran did not have upper extremity diabetic neuropathy. The Veteran was informed of his right to appeal but did not do so. Furthermore, as discussed below, new and material evidence was not received within one year of the rating decision. Therefore, the October 2011 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § § 3.104; 20.202. The evidence reviewed by the RO at the time of the October 2011 decision included statements from the Veteran, service records, VA treatment records through February 2011, and a February 2011 examination. The treatment records note complaints of numbness in the fingers. The February 2011 examiner listed symptoms of carpal tunnel syndrome, bilaterally with pain and locking of the pointer finger. Since the October 2011 decision, the record includes new treatment records, statements, and examinations. Statements from the Veteran to treating providers and during the Board hearing show he continues to have pain, numbness, and other symptoms in his upper extremities. VA treatment records show electromyography (EMG) and nerve conduction studies identified bilateral carpal tunnel syndrome as the source. The JMPR directed the Board to specifically discuss a September 2011 nerve conduction study “reflecting ‘electro-diagnostic evidence of a moderate to severe right and moderate left median mononeuropathies occurring at the wrists focally.’” The Board has reviewed the September 2011 nerve conduction study and relies on the medical expertise of the interpreting physician who wrote that the clinical findings were consistent with carpal tunnel syndrome. There is no mention of diabetic peripheral neuropathy in the September 2011 report. Additionally, the January 2014 examiner found the Veteran did not have any recognized complications of diabetes. The April 2015 examiner found diabetic neuropathy affecting the Veteran’s lower extremities but no evidence of diabetic symptoms in the upper extremities. The examiner concluded the Veteran did not have upper extremity peripheral neuropathy. As the Board concluded previously, none of this evidence is material to the prior basis for denial – that the Veteran did not have upper extremity diabetic neuropathy. However, after the appeal has been returned to the Board, the record now contains new and material evidence. An August 23, 2019, EMG report shows evidence of bilateral ulnar mononeuropathies at both elbows, which is noted as likely generalized peripheral polyneuropathy similar to that in the lower extremities. This evidence was not previously reviewed by agency decisionmakers and addresses the issue of whether the Veteran has diabetic peripheral neuropathy. As new and material evidence has been received, the petition to reopen the claim of service connection for upper extremity peripheral neuropathy is granted. 2. Service connection for a low back disability The Veteran contends he has a current low back disability due to an in-service fall. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(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” – also known as the “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt is resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is competent to describe symptoms observable to his senses, but he is not competent to determine the cause of arthritis or degenerative disc disease as this requires specialized medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Based on the evidence, the Board finds the criteria for service connection for a low back disability have not been met. 38 C.F.R. § 3.303. First, the evidence shows a current low back disability. The January 2014 VA examiner diagnosed degenerative arthritis of the spine. The October 2019 VA examiner diagnosed degenerative disc disease of the lumbar spine. With evidence of a current disability, the first element of service connection is satisfied. See Holton, 557 F.3d at 1366. Next, the evidence is conflicting as to whether the Veteran had an in-service injury to his low back. Service treatment records are silent as to reports of an injury to or treatment for the back with the exception of a notation on the Veteran’s report of medical history at entrance into service. At the bottom of the March 1968 report, the interviewing clinician wrote that the Veteran reported a fall with trauma to right wrist and lower back with residual intermittent pain. The Veteran was found to be fit for duty, with no recorded back disability, on his entrance examination. On his September 2010 application for compensation, the Veteran listed lower back injury, 1969, and Vietnam. During the Board hearing, the Veteran reported falling off a supply truck when he was in Vietnam in either late 1969 or early 1970. The Veteran reported that he went to the medic, was given pain medication, and was put on light duty for 30 days. As noted, there is no record of the Veteran being treated or being put on light duty. The Veteran has also reported having back pain on and off since service, seeking treatment from Dr. M in the 1970s and while he worked for Pontiac, but both sets of records being unavailable. The October 2019 examiner considered the Veteran’s reports of in-service injury, pain on and off since service, and treatment with Dr. M. The examiner ultimately concluded that the Veteran’s back disability is less likely than not related to service, noting inconsistencies in the Veteran’s reports, lack of record of treatment for many years, and diagnostic imaging that demonstrated an age-related condition. The examiner noted that the Veteran reported to him that he had no back injury prior to service and did not have a separation examination before leaving the service. The examiner noted that his report was inconsistent with the evidence of record, which includes the notation of a prior back injury on the entrance report of medical history and a separation examination and report of medical history signed by the Veteran in February 1970. Although the January 2014 VA examiner was unable to consider the Veteran’s testimony of ongoing back pain and treatment, the examiner found significant the Veteran’s 20-year work history in the automobile industry and noted that the Veteran’s degenerative joint disease was common for his age. The Board finds the entrance report of medical history highly probative evidence as the documented report of a medical condition made to a medical provider with what appears to be the Veteran’s signature on the document. The Board sees no reason to doubt that the Veteran had a fall with back injury prior to service but that was not significant enough to be noted on examination or disqualify him for service. It is unclear, however, whether the Veteran had two falls with injuries to his back, one prior to and one during service, or whether he had only one fall, prior to service, and has misremembered when the fall actually occurred. The inconsistencies between the lay reports and the documented evidence leads the Board to find the lay statements less reliable evidence on which to base a decision. Additionally, neither the Board nor the Veteran has the requisite medical expertise to make a competent determination as to whether the off-and-on pain the Veteran experienced through the years was due to prior injuries or the physical aspects of his daily life, like working in the automobile industry. Unfortunately, the other available evidence of record weighs against the claim. The available treatment records do not show complaints of back pain prior to 2010 or diagnosis of degenerative joint disease before 2012. The record is consistent on the fact that the Veteran worked in the automobile industry before and after service for many years. Both VA examiners reviewed diagnostic imaging and found the Veteran’s low back disabilities were consistent with his age. The Board finds these assessments highly probative as they are based on the current disability presentation and medical expertise of the examiners. The Board concludes that the most-probative evidence shows the Veteran’s current back disability is due to age and a long history of physical civilian work rather than an in-service injury. Therefore, this case does not reach the level of equipoise, and service connection for the low back disability cannot be granted. REASONS FOR REMAND 1. Entitlement to service connection for upper extremity peripheral neuropathy is remanded. The Veteran contends he has upper extremity peripheral neuropathy secondary to his service-connected diabetes. As noted above, the evidence shows he has carpal tunnel syndrome in his arms as well as generalized peripheral polyneuropathy, as discussed in the August 2019 EMG report. A medical opinion is needed to determine if the peripheral polyneuropathy in his arms is at least as likely as not due to his diabetes, and what percentage of his upper extremity neurologic disability is at least as likely as not caused or aggravated by his service-connected diabetes. The Agency of Original Jurisdiction should obtain a new examination and medical opinion for the upper extremities. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Then, request the Veteran be scheduled for a peripheral nerve examination. The examiner should review the claims file and address the following: (a.) Is the upper extremity peripheral polyneuropathy noted on the August 2019 EMG report at least as likely as not caused by the Veteran’s service-connected diabetes? Was the upper extremity peripheral polyneuropathy at least as likely as not aggravated (worsened) by diabetes? (b.) Is the bilateral carpal tunnel syndrome at least as likely as not caused by the Veteran’s service-connected diabetes? Was the bilateral carpal tunnel syndrome at least as likely as not aggravated (worsened) by diabetes? (c.) If the answer to any of the above questions is yes, estimate the percentage of upper extremity nerve disability that can be attributed to diabetes, either by causation or aggravation. All opinions must be supported by detailed rationale. If the opinion cannot be provided without resort to speculation, the examiner should explain why, and state whether the inability is due to the absence of evidence or limits of scientific/medical knowledge. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.P. Armstrong 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.