Citation Nr: 21031950 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-08 072 DATE: May 25, 2021 ORDER Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus type II, is denied. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus type II, is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to an initial compensable disability rating for service-connected dermatitis is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had left upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus type II, at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence of record is against finding that the Veteran has had right upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus type II, at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). 2. The criteria for entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus type II, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from May 1969 to November 1972; from October 1990 to July 1991; from January 1992 to May 1993; from August 5, 2001 to August 9, 2001; from November 2007 to December 2007; and from February 2008 to March 2008. This matter before the Board of Veterans' Appeals (Board) is on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan (Agency of Original Jurisdiction (AOJ)). This matter was previously before the Board in October 2018. The Board remanded on these issues to afford the Veteran the opportunity to present for new VA examinations. A review of the file reflects that new examinations were completed, and additional medical records were obtained. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an 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). Service connection may be granted, on a secondary basis, for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (holding that service connection on a secondary basis requires evidence sufficient to show that the current disability was caused or aggravated by a service-connected disability). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to service connection for left upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus type II. 2. Entitlement to service connection for right upper extremity peripheral neuropathy, to include as secondary to service-connected diabetes mellitus type II. The Veteran asserts that he has left and right upper extremity peripheral neuropathy that is etiologically related to his service-connected diabetes mellitus type II. He contends that his neuropathy began in 2009 around the time he developed diabetes mellitus type II. However, the medical evidence of record does not suggest that the Veteran has a current diagnosis of left or right upper extremity peripheral neuropathy. While his VA treatment records do include references to left lower extremity sural neuropathy associated with diabetes mellitus type II, they do not include treatment or diagnoses for upper extremity neuropathy. Moreover, the Veteran's October 2019 VA examination failed to diagnose left or right upper extremity peripheral neuropathy. The examination instead reported that he suffered from left lower extremity radiculopathy and mild peripheral sensori-motor diabetic neuropathy in his feet. Ultimately as a result of this examination, the Veteran received service connection for right and left sciatic nerve neuropathy associated with diabetes mellitus type II as well as left external cutaneous nerve neuropathy associated with diabetes mellitus type II. The evidence of record, including VA and private treatment records and VA examination reports do not support the finding that the Veteran has a current diagnosis of left and/or right upper extremity peripheral neuropathy. As such, these claims must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability. The Veteran contends that he has a lumbar spine disability that is etiologically related to an accident that occurred during his military service. Specifically, he alleges his back pain is due to falling down the stairs of a C-130 approximately a four-foot drop. During his initial VA examination for this condition, he stated that this incident occurred in 2005; however, multiple lay statements from his colleagues suggest it actually happened in April 2007. The Board observes that neither of these dates are verified as active duty service for this Veteran, but it is unclear if he was on active duty for training (ACDUTRA) or in active duty for training (INACDUTRA) at that time. Moreover, in its October 2018 decision, the Board was cognizant that service treatment records (STRs) were missing from the record due to some of them being fire-related. However, STRs from his more recent periods of service would have been excluded and may be available. It does not appear that records from any periods of ACDUTRA or INACDUTRA service were requested at the time of the original request for STRs either. Because these records may be probative and because the Veteran's dates of eligible service are unclear, the Board will remand for clarification and to seek these records. 2. Entitlement to an initial compensable disability rating for service-connected dermatitis. The Veteran is presently service-connected for dermatitis pursuant to 38 C.F.R. § 4.118, DC 7806. His condition was evaluated as noncompensable in a December 2013 rating decision, where the AOJ implemented an effective date of December 29, 2011. The Veteran contends, however, that he is entitled to a higher disability rating because he is actively receiving treatment for his dermatitis at the Detroit VA Medical Center (VAMC). In connection with his claim for service connection, the Veteran received a VA examination for his skin condition in November 2013. At that time, the examiner recorded a diagnosis of dermatitis and documented, "per Veteran's history, his cheeks got scab from skin lesion that comes and goes like a pimple since 1990...taken out a few times. It hurt and [is] painful sometimes. No pus. Since 2005 no more on cheeks but on head...not on any Rx creams for a while now. Veteran sees Dr. Collier/dermatology in Warren." A review of the file, however, does not reveal that records from Dr. Collier's office were sought or obtained. These records are deemed as highly probative since they may include information that could warrant a higher disability rating during the period on appeal, the Board shall remand to seek these records. The matters are REMANDED for the following action: 1. The AOJ shall verify the dates of the Veteran's ACDUTRA/INACDUTRA and any other type of Reserve service, if any, by contacting the Defense Finance and Accounting Service (DFAS) and requesting the Veteran's most recent Master Military Pay Account (MMPA). The AOJ must document all steps taken to obtain this record. 2. The AOJ shall seek to obtain the Veteran's complete STRs, including all periods of active duty, ACDUTRA, and INACDUTRA. 3. The AOJ shall associate the Veteran's most recent outstanding VA medical treatment records with his file, specifically those records from November 2019 to the present. 4. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated him for dermatitis or any other skin condition, to include from Dr. Collier. Thereafter, obtain and associate with the claims folder any private treatment records identified. 5. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Victoria A. Banis, 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.