Citation Nr: 21023477 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-43 915 DATE: April 20, 2021 REMANDED Entitlement to service connection for a peripheral nerve disability of the right upper extremity is remanded. Entitlement to service connection for a peripheral nerve disability of the left upper extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1969 to April 1972. The current appeal comes before the Board of Veterans’ Appeals (Board) from a September 2014 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for diabetic peripheral neuropathy of the right and left upper extremities. In an August 2017 substantive appeal, on VA Form 9, the Veteran requested a videoconference hearing before a Veterans’ Law Judge. He was scheduled for his requested hearing in September 2019. According to VA’s Veterans Appeals Control and Locator System (VACOLS), however, the Veteran cancelled his hearing before the hearing could be held. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. § 20.603(e). In October 2019, the Board denied the Veteran’s claims for peripheral neuropathy of the right and left upper extremities. The Veteran appealed the denial of these claims to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted an October 2020 Joint Motion for Remand (JMR) filed by representatives for the Veteran and VA, which vacated the Board’s denial of these claims, and remanded the matters to the Board for further proceedings consistent with the JMR. Neurological Disabilities of the Right and Left Upper Extremities In the October 2020 JMR, the parties stipulated that, although the record reflects diagnoses of bilateral median nerve neuropathy and carpal tunnel syndrome, the Board erred in the October 2019 decision by limiting its decision to only the Veteran’s claimed diabetic peripheral neuropathy, and not considering the diagnosed neurological disabilities of record, particularly since his reported symptoms in pursuit of his service connection claims were encompassed by the diagnoses rendered by a July 2017 VA examiner. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a claim is not limited to a particular diagnosis but “may reasonably be encompassed by several factors including: the claimant’s description of the claim;” described symptoms; and evidence obtain in support of the claim). The Board, therefore, has expanded the Veteran’s claims accordingly. In considering the Veteran’s expanded claims, the Board notes that a December 2015 VA electromyography (EMG) study was indicative of bilateral distal median neuropathies at the wrists, such as may be seen in carpal tunnel syndrome (CTS). The report noted that, when compared with a 2013 study, there was evidence of worsening of the left CTS. In a July 2017 VA peripheral nerve examination report, the examiner relied on the December 2015 diagnosis of median nerve neuropathy due to CTS in rendering the Veteran’s diagnoses. At the examination, the Veteran maintained that his neuropathy symptoms were getting worse. The examiner opined that the Veteran’s peripheral neuropathy was less likely than not proximately due to, or the result of, the service-connected type II diabetes mellitus (DMII). In providing this opinion, the examiner discussed the severity of the Veteran’s CTS and summarily concluded that the Veteran’s peripheral neuropathy was most likely due to CTS versus due to service-connected diabetes. At the same time, the examiner concluded that CTS was due to arthritis in the wrists. The examiner did not provide clear reasons why the Veteran’s peripheral neuropathy was most likely due to CTS rather than DMII, or why CTS was due to arthritis, as opposed to being due to the service-connected DMII. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation connecting the two). Additionally, on the question of aggravation of the Veteran’s peripheral neuropathy, the examiner appeared to point to minimal current findings of upper extremity neuropathy as evidence for why the Veteran does not have diabetic peripheral neuropathy of his upper extremities, and for why his neuropathy was not aggravated by service-connected DMII. The examiner, however, did not provide reasons for this supposed association, and they are not otherwise apparent. Further, as the examiner noted in preceding paragraphs, the Veteran had previously described a worsening of his upper extremity neuropathy, and worsening was in fact noted in the December 2015 EMG when compared to a prior EMG study in 2013. The examiner did not appear to consider the prior worsening in the providing the foregoing opinions. Thus, clarification is required. Id. Accordingly, these matters are hereby REMANDED for the following action: Arrange for the Veteran to undergo new VA examination, with an appropriate examiner (preferably one with expertise in evaluating neurological disabilities), for his claimed upper extremity peripheral nerve disabilities. Any and all indicated studies and tests deemed necessary by the examiner should be accomplished. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record and completion of the examination (including any necessary tests and studies), the VA examiner should: (a.) Clearly identify all peripheral nerve disabilities of the upper extremities—to include specifically carpal tunnel syndrome, and neuropathy (including any diabetic neuropathy)—currently present or present at any point pertinent to the current claims (even if now asymptomatic or resolved). (b.) For each such identified disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater), that the disability was caused, or aggravated (made worse) beyond its natural progression by service-connected type II diabetes mellitus. In addressing the above, the examiner must consider and discuss all pertinent medical evidence, to include evidence of diagnosis of, and treatment for, peripheral neuropathy in the medical record; and lay evidence of record, to include the Veteran’s assertions as to the nature, onset, and continuity of his peripheral nerve symptoms. The examiner is advised that the Veteran is competent to report his peripheral nerve symptomatology, including experiencing worsening symptoms. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. A clear explanation for all opinions expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring that the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any VA medical examination that may be scheduled may impact determinations made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.