Citation Nr: 21027993 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-16 575 DATE: May 10, 2021 ORDER Service connection for neuropathy of the right upper extremity, including as secondary to service-connected diabetes mellitus, type II, is granted. Service connection for neuropathy of the left upper extremity, including as secondary to service-connected diabetes mellitus, type II, is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran has a current neuropathy of the right upper extremity that is proximately due to or the result of his service-connected diabetes mellitus, type II. 2. The evidence is at least in equipoise as to whether the Veteran has a current neuropathy of the left upper extremity that is proximately due to or the result of his service-connected diabetes mellitus, type II. CONCLUSIONS OF LAW 1. The criteria for service connection for neuropathy of the right upper extremity, to include as secondary to his service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a). 2. The criteria for service connection for neuropathy of the left upper extremity, to include as secondary to his service-connected diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1964 to June 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2020 decision, the Board denied service connection for peripheral neuropathy of the bilateral upper extremities. The Veteran appealed to the US Court of Appeals for Veterans Claims (CAVC) and the parties agreed to a Joint Motion for Remand (JMR). The JMR was granted in a December 2020 Order, which vacated the April 2020 Board decision and remanded the issues of service connection for peripheral neuropathy of the right and left upper extremities. Service Connection 1. Entitlement to service connection for peripheral neuropathy of the right upper extremity, including as secondary to service-connected diabetes mellitus, type II; 2. Entitlement to service connection for peripheral neuropathy of the left upper extremity, including as secondary to service-connected diabetes mellitus, type II Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disorder. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 449 (1995). In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, the Veteran's treatment records reveal his complains of bilateral hand pain commencing in September 2013. An EMG [electromyography] and nerve conduction velocity [NCV] test revealed a motor neuropathy. The treating provider indicated that he suspected that his bilateral hand pain was due to his neuropathy, which may be related to his diabetes. He was diagnosed with diabetes mellitus and idiopathic progressive polyneuropathy. A treatment record in November 2013 revealed the Veteran's complaints of bilateral arm pain. The treating provider indicated that his nerve conduction test suggested a diffuse motor neuropathy and noted that his diabetes can contribute to his peripheral neuropathy. The Veteran was diagnosed with diabetic neuropathy. In a July 2016 statement, S.W., M.D., indicated that the Veteran suffered from diabetes mellitus, type II, and diabetic neuropathy. Neuropathy was first noted in 2013, which was finally determined to be diabetic neuropathy. An EMG/NCV of the bilateral upper extremities was performed in December 2016, which revealed electrophysiological evidence of a chronic, moderate sensory polyneuropathy within the upper extremities with evidence demyelination throughout. The findings were found to be consistent with his history of diabetes. The Veteran's treatment records dated in November 2017 note a history of sensory neuropathy for the prior five years. His symptoms began in his lower extremities and subsequently spread to his upper extremities. His December 2016 EMG confirmed widespread motor and sensory neuropathy in both upper extremities. He was diagnosed with diabetic neuropathy. The Veteran's December 2018 VA treatment records confirm his diagnosis of diabetic neuropathy in his arms. After a review of the record, the Board finds that the evidence weighs in favor of a finding that the Veteran has diabetic neuropathy of his bilateral upper extremities, which is secondary to his service-connected diabetes mellitus, type II. In this regard, there is ample evidence, including two EMG/NCV studies, which revealed neuropathy in his upper extremities. Moreover, his treatment records confirm his neuropathy is secondary to his diabetes mellitus, type II, including a confirmed diagnosis of diabetic neuropathy of his upper extremities. The Board acknowledges the negative opinions contained in the August 2015 VA examination and November 2016 addendum opinion, which noted that there were no objective findings of upper extremity neuropathy found during the August 2015 VA examination. However, the Board affords little weight to this opinion given the abundant evidence of neuropathy of the upper extremities, including two objective EMG/NCV studies. (Continued on the next page) Based on the above evidence, and resolving doubt in the Veteran's favor, the Board find that the Veteran's bilateral upper extremity neuropathy is proximately due to his service-connected diabetes mellitus, type II. Accordingly, service connection for neuropathy of the right upper extremity and left upper extremity is warranted. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. (Hurley) Merrick 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.