Citation Nr: 21024338 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-34 748A DATE: April 22, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for upper extremity neuropathy, to include as secondary to service-connected diabetes mellitus, type II and herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1971 through August 1975. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from May 2012 and November 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in July 2019. In November 2019, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that his acquired psychiatric disability is related to his service. Specifically, he alleges that his acquired psychiatric disability was caused by a traumatic experience in service. He was afforded a VA examination in December 2020 for his acquired psychiatric disability. The examiner opined that the Veteran’s acquired psychiatric disability was less likely than not caused by his service-connected disabilities. However, no opinion was offered regarding direct service connection. As the Veteran has alleged that his acquired psychiatric disability is directly related to his service, further development is necessary. 2. Entitlement to service connection for upper extremity neuropathy, to include as secondary to diabetes mellitus, type II and herbicide exposure, is remanded. The Veteran contends that his upper extremity neuropathy is related to service, to include as secondary to his diabetes mellitus, type II, or in-service herbicide exposure. At a September 2020 VA examination, an examiner found that the Veteran did not have a current diagnosis of upper extremity neuropathy and his symptoms were subjective only. However, the Veteran’s post-service treatment notes document his complaints of upper extremity parasthesia affecting his hands and arms. Here, an assessment of neuropathy was noted. See VBMS document labeled Medical Treatment Record-Non-Government Facility, receipt date 4/1/2013. Additionally, despite the lack of a formal diagnosis, pain alone may constitute disability, even without an identifiable underlying pathology, if the pain reached the level of a functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Saunders was very recently interpreted as defining a “disability” as a functional impairment of earning capacity, and that applies broadly to include more than just pain. Martinez-Bodon v. Wilkie, No. 18-3721, (U.S. App. Vet. August 11, 2020). On remand, the Veteran should be afforded a new VA examination to clarify the nature and etiology of his upper extremity numbness, to include whether he has any related diagnosed disability and if not, whether any functional impairment alone may constitute disability, even without an identifiable underlying pathology. The matters are REMANDED for the following action: 1. Obtain an opinion as to the nature and etiology of the Veteran’s acquired psychiatric disability. The clinician is asked to opine whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s acquired psychiatric disorder is related to his active duty service, to include his alleged traumatic experience of witnessing a killing? See VBMS, Hearing Transcript, receipt date 7/17/2019, page 4-11. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any upper extremity numbness. Based on the examination, the examiner is asked to address the following: (a) Specifically identify any diagnosable pathology associated with the Veteran’s upper extremity numbness. (b) If there is no diagnosable pathology for the upper extremity numbness, the examiner must determine whether there is any objective evidence of numbness resulting in functional impairment? Specifically, does any numbness impair the Veteran’s ability to function under the ordinary conditions of daily life, including employment? In answering this question, the examiner should ask the Veteran to explain the effect of numbness. (c) Is it at least as likely as not (probability of 50 percent or higher) that any diagnosed upper extremity pathology or identified functional impairment had its onset in or is otherwise related to active duty service? In answer this, the examiner must specifically consider the conceded exposure to herbicides in-service. (d) if the answer to (c) is no, it is at least as likely as not that any upper extremity numbness or identified functional impairment is caused or aggravated (defined here as any increase in disability) by the Veteran’s service-connected diabetes mellitus, type II, disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.