Citation Nr: A24049385 Decision Date: 08/22/24 Archive Date: 08/22/24 DOCKET NO. 240312-425945 DATE: August 22, 2024 ORDER Readjudication of the claim for service connection for left lower extremity peripheral neuropathy is granted. Readjudication of the claim for service connection for right lower extremity peripheral neuropathy is granted. Readjudication of the claim for service connection for left upper extremity peripheral neuropathy is granted. Readjudication of the claim for service connection for right upper extremity peripheral neuropathy is granted. Entitlement to service connection for a neurological disorder of the left lower extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, is denied. Entitlement to service connection for a neurological disorder of the right lower extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, is denied. Entitlement to service connection for a neurological disorder of the left upper extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, is denied. Entitlement to service connection for a neurological disorder of the right upper extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, is denied. FINDINGS OF FACT 1. New evidence has been received relevant to the issue of entitlement to service connection for left lower extremity peripheral neuropathy since the May 2018 rating decision that denied service connection for the claimed disability on the merits. 2. New evidence has been received relevant to the issue of entitlement to service connection for right lower extremity peripheral neuropathy since the May 2018 rating decision that denied service connection for the claimed disability on the merits. 3. New evidence has been received relevant to the issue of entitlement to service connection for left upper extremity peripheral neuropathy since the May 2018 rating decision that denied service connection for the claimed disability on the merits. 4. New evidence has been received relevant to the issue of entitlement to service connection for right upper extremity peripheral neuropathy since the May 2018 rating decision that denied service connection for the claimed disability on the merits. 5. The Veteran does not have peripheral neuropathy of the left lower extremity; rather, his symptoms have been attributed to left lower extremity radiculopathy and his left lower extremity radiculopathy is not etiologically related to service or a service connected disability. 6. The Veteran does not have peripheral neuropathy of the right lower extremity; rather, his symptoms have been attributed to right lower extremity radiculopathy and his right lower extremity radiculopathy is not etiologically related to service or a service connected disability. 7. The Veteran does not have peripheral neuropathy of the left upper extremity; rather, his symptoms have been attributed to left upper extremity radiculopathy and his left upper extremity radiculopathy is not etiologically related to service or a service connected disability. 8. The Veteran does not have peripheral neuropathy of the right upper extremity rather, his symptoms have been attributed to right upper extremity radiculopathy and his right upper extremity radiculopathy is not etiologically related to service or a service connected disability. CONCLUSIONS OF LAW 1. The criteria for readjudication of the issue of service connection for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 101(35), 5108; 38 C.F.R. § 3.156(d). 2. The criteria for readjudication of the issue of service connection for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 101(35), 5108; 38 C.F.R. § 3.156(d). 3. The criteria for readjudication of the issue of service connection for left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 101(35), 5108; 38 C.F.R. § 3.156(d). 4. The criteria for readjudication of the issue of service connection for right upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 101(35), 5108; 38 C.F.R. § 3.156(d). 5. The criteria for service connection for a neurological disorder of the left lower extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 6. The criteria for service connection for a neurological disorder of the right lower extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 7. The criteria for service connection for a neurological disorder of the left upper extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 8. The criteria for service connection for a neurological disorder of the right upper extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to June 1970. In December 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the claims of entitlement to service connection for bilateral lower and upper extremity peripheral neuropathy most recently addressed in a May 2018 rating decision. On March 20, 2023, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. In the March 12, 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on May 14, 2024. Therefore, the Board may only consider the evidence of record at the time of the March 2023 AOJ decision on appeal, as well as any evidence submitted by the Veteran, or his representative, at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court explained that in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the claim of service connection for peripheral neuropathy of the bilateral lower and upper extremities to include a claim for bilateral lower and upper extremity radiculopathy, as stated on the title page of this decision. This will provide the most favorable review of the Veteran's claims in keeping with the Court's holding in Clemons. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). 1. Readjudication of the claim for service connection for left lower extremity peripheral neuropathy is granted. 2. Readjudication of the claim for service connection for right lower extremity peripheral neuropathy is granted. 3. Readjudication of the claim for service connection for left upper extremity peripheral neuropathy is granted. 4. Readjudication of the claim for service connection for right upper extremity peripheral neuropathy is granted. Under the modernized review system, a claimant who disagrees with a prior VA decision may file a supplemental claim. 38 C.F.R. § 3.2501. If new and relevant evidenced is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the previously denied claim taking into consideration all of the evidence of record. Id. If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. Id. "New evidence" is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. Id. As noted above, the Veteran's claims for service connection for bilateral lower and upper extremity peripheral neuropathy were previously denied in a May 2018 rating decision. The evidence of record at the time of the May 2018 rating decision included service treatment records (STRs), VA treatment records, and a May 2018 VA examination. The Veteran's claims for bilateral lower and upper extremity peripheral neuropathy were denied because the Veteran did not have peripheral neuropathy of the lower or upper extremities. After receipt of the Veteran's December 2022 supplemental claim, the AOJ obtained updated VA treatment records pursuant to VA's duty to assist; additionally, the Veteran provided hearing testimony in May 2024, indicating that he had a diagnosis of peripheral neuropathy; the Veteran was afforded VA examinations in December 2022 and February 2023 for peripheral neuropathy, neck conditions, and back conditions, indicating that the Veteran did not have peripheral neuropathy but instead had cervical and lumbar radiculopathy; and the Veteran submitted a private medical opinion, indicating that the Veteran had peripheral neuropathy and diabetes mellitus. The Board finds that this evidence meets the low threshold of new and relevant evidence as it was not of record at the time of the most recent denial and contains information that tends to prove or disprove a matter in issue. Readjudication of the claims is therefore warranted. 5. Entitlement to service connection for a neurological disorder of the left lower extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, is denied. 6. Entitlement to service connection for a neurological disorder of the right lower extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, is denied. 7. Entitlement to service connection for a neurological disorder of the left upper extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, is denied. 8. Entitlement to service connection for a neurological disorder of the right upper extremity, to include peripheral neuropathy and radiculopathy, including on a secondary basis, is denied. The Veteran contends that he has peripheral neuropathy that is secondary to his service connected diabetes mellitus, and in a December 2022 statement, the Veteran indicated that his doctor had "stated multiple times" that he had "peripheral neuropathy secondary to his chronic uncontrolled diabetes." 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. § 1110; 38 C.F.R. §§ 3.303(a). To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis. In this instance, the evidence must demonstrate an etiological relationship between a service-connected disability or disabilities on the one hand and the condition said to be proximately due to the service-connected disability or disabilities on the other. 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509 (1998). Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis for any neurological disorders of the bilateral lower or upper extremities. A November 2011 VA treatment record notes that the Veteran had neck pain with radiculopathy and back pain. A September 2012 VA treatment record notes that the Veteran had left cervical myofascial dysfunction, possible left cervical radiculopathy versus other left upper extremity mononeuropathy, left subacromial bursitis/left shoulder acromioclavicular (AC)/glenohumeral (GH) degenerative joint disease (DJD) per April 2012 x-rays, multilevel cervical degenerative disc disease (DDD) most significant C5 -C7 with moderate C5-C6, C6-C7 canal stenosis, possible left C5 nerve root impingement, and a history of diabetes mellitus. A September 2012 VA treatment record notes cervical radiculopathy; left AC DJD; probable rotator cuff tendinosis/impingement; and paresthesia in the left upper extremity. An October 2012 VA treatment record notes that the Veteran reported left neck and left upper extremity paresthesia. The Veteran reported that his left arm was numb all the way down to his fingers; he had this problem for about six months, with insidious onset and no inciting events. A November 2012 VA examination for diabetes mellitus reflects that the Veteran did not have peripheral neuropathy due to diabetes. Medical treatment records dated from December 2017 through December 2018 reflect that the Veteran was prescribed gabapentin for neuropathy. Notably, review of the December 2017 VA treatment records reflects that the Veteran had chronic neck and low back pain/DDD, cervical and lumbar radiculopathy with the left greater than the right secondary to foraminal narrowing, disc osteophytes L2-L5 with contact L3, L4, L5 nerve roots, and a history of type 2 diabetes controlled with medication. A May 2018 VA examination for peripheral neuropathy indicates that the Veteran did not have peripheral neuropathy. The examiner noted that the Veteran was diagnosed with diabetes mellitus in 2011, and he was diagnosed with cervical; and lumbar radiculopathy in December 2017. The examination notes that the Veteran reported neck and back pain with tingling that goes down his legs, neck, and upper arms. After a review of the Veteran's claims folder, the Veteran's reported symptoms and history, and an in-person examination, the examiner indicated that the Veteran did not have a diagnosis of diabetic peripheral neuropathy at this time; his history and physical examination were consistent only with cervical and lumbar radiculopathy. Therefore, the examiner opined that the Veteran's claimed neuropathy was not as likely as not due to or caused by his service connected diabetes mellitus. July 2018 VA examinations for neck and back conditions notes diagnoses of cervical arthritis and moderate bilateral radiculopathy; and degenerative arthritis, degenerative disc disease lumbar spine, and lumbar radiculopathy, respectively. An October 2022 electromyography (EMG)/nerve conduction study (NCS) showed that there was electrodiagnostic evidence of acute on chronic right L4-L5 radiculopathy and chronic left L4 radiculopathy. The record notes that there is no electrodiagnostic evidence to suggest peripheral polyneuropathy in bilateral lower limbs and absent of left sural sensory can be due to technical issue. A December 2022 VA examination for peripheral nerve conditions notes diagnoses of cervical radiculopathy and lumbar radiculopathy. The examination notes that the Veteran reported his symptoms started in 2009. The Veteran reported that he experienced constant tingling and numbness in his legs, and he denied having X-rays or any other diagnostic testing on his feet. The Veteran reported that he recently acquired a blood clot on his leg, swelling to the point where he could not wear his shoe or socks. The Veteran noted that they gave him blood thinner and told him to keep an eye on it. The Veteran reported that he suffered from constant neuropathy and swelling every day, indicating that he took medication, but nothing really helped with the pain. A February 2023 VA examination for neck conditions notes diagnoses of degenerative arthritis of the cervical spine and radiculopathy of the bilateral upper extremities. A February 2023 VA back examination notes diagnoses of thoracic and lumbar degenerative joint disease; no diagnosis of radiculopathy was noted. During his May 2024 Board hearing, the Veteran testified that his doctor confirmed that he had peripheral neuropathy, and he had been treated for peripheral neuropathy for a long time. The Veteran's representative indicates that records submitted in 2018 reflect that the Veteran was prescribed gabapentin for neuropathy, and he has been taking this for years. The Veteran, through his representative, contended that the probative value of the December 2022 VA examination should be outweighed by the Veteran's own treating provider because the VA examiner only spent 30 minutes with the Veteran and his primary care provider had been treating him for years. Additionally, the Veteran's representative argued that the examiner went beyond the scope of the examination request because she did not merely respond to whether neuropathy was due to diabetes; rather, she indicated that the diagnosis was not correct, without indicating why there was a misdiagnosis. In a May 2024 statement, the Veteran's treating provider indicated that the Veteran was "unable to work due to neuropathy. This condition causes him to be incompetent of working because of his severe diagnosis of diabetes." After a review of the evidence, the Board concludes that the Veteran does not have a current diagnosis of bilateral lower or upper extremity peripheral neuropathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, the Board has considered the evidence indicating that the Veteran had neuropathy, namely the VA treatment records reflecting that the Veteran was prescribed gabapentin for neuropathy and the May 2024 statement from the Veteran's treating provider. However, none of these records contain any reliable clinical assessment or testing which provides a diagnosis of peripheral neuropathy of the lower or upper extremities. Specifically, regarding the records showing that the Veteran was prescribed gabapentin for neuropathy, the Board notes that the associated medical treatment records in fact do not indicate that he had peripheral neuropathy and instead note, in pertinent part, that the Veteran had chronic neck and low back pain/degenerative disc disease, cervical and lumbar radiculopathy. Additionally, to the extent that the Veteran's treating provider indicated that the Veteran had neuropathy, the Board notes that the provider did not indicate how she arrived at this diagnosis, particularly in light of the Veteran's other diagnoses of lumbar and cervical radiculopathy noted throughout the medical records. As such, to the extent that the VA treatment records reflecting that the Veteran was prescribed gabapentin and the May 2024 statement from the Veteran's treating provider suggest that the Veteran had a diagnosis of peripheral neuropathy, the Board finds these records are outweighed by the May 2018 and December 2022 VA examiners' opinions, which considered the Veteran's medical treatment records, as well as the Veteran's reported symptoms, and nevertheless found that the Veteran did not have a diagnosis of peripheral neuropathy. Thus, the Board finds that the probative evidence of record does not establish a current diagnosis of peripheral neuropathy of the lower or upper extremities. To the extent that the Veteran asserts that the December 2022 VA examination is inadequate or less probative because the examiner only spent 30 minutes with the Veteran, the Board notes that the VA examination notes that the claims file was reviewed, including medical treatment records, and the examiner elicited statements from the Veteran regarding his symptoms and history and conducted an in-person examination. Moreover, to the extent that the examiner did not explain why the diagnosis of peripheral neuropathy was not correct, the Board does not find that this renders the examination inadequate because, as explained above, the probative evidence of record does not indicate that the Veteran ever had a diagnosis of peripheral neuropathy. Accordingly, the Board finds that the December 2022 VA examination is adequate for purposes of deciding the claim and probative evidence regarding the Veteran's current diagnoses. The Board notes that while the Veteran is competent to report observable symptoms, he is not shown to possess the medical training necessary to establish a current disability or render competent opinions about the etiology of a disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Thus, to the extent that the Veteran asserts that he has peripheral neuropathy of the bilateral lower and upper extremities, the Board finds that his statements are outweighed by the remaining evidence of record. Additionally, the Board acknowledges that the Veteran is certainly competent to report what his doctor told him; however, there is no probative medical evidence of record to support this statement. As such, his lay recounting regarding his current diagnoses is outweighed by the more probative medical evidence of record. Thus, the competent evidence of record does not establish that the Veteran currently has peripheral neuropathy of the lower and upper extremities. As the evidence of record does not demonstrate that the Veteran does in fact have a current bilateral lower or upper extremity peripheral neuropathy disability, the first element of service connection has not been met for the claims on appeal, and no further analysis is necessary. Accordingly, the Board finds that the evidence is persuasively against finding that the Veteran has peripheral neuropathy of the bilateral lower or upper extremities. As there is no disability that can be related to active service or a service connected disability, the Veteran's claim for service connection must be denied. 38 U.S.C. § 1110; Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Nevertheless, the Board finds that the evidence reflects that the Veteran has been diagnosed with bilateral lower and upper extremity radiculopathy. At the outset, the Board notes that there is no evidence in this case, nor does the Veteran contend, that his bilateral lower or upper extremity radiculopathy had its onset during his period of active service. Nor is there evidence to suggest the presence of bilateral lower or upper extremity radiculopathy until many years after the Veteran's service, and thus, there is no indication of continuity of symptoms since service or that the Veteran's bilateral lower or upper extremity radiculopathy manifested to a compensable degree within one year of his separation from military service. Accordingly, service connection for bilateral lower or upper extremity radiculopathy cannot be granted on a direct basis based on in-service incurrence or on a presumptive basis for chronic diseases. In this regard, the Board acknowledges that a VA opinion addressing direct service connection was not obtained; however, as the Veteran's sole theory of service connection is on a secondary basis, and as the record does not establish an in-service presence of an associated event, injury or disease, the Board finds that it is insufficient to trigger VA's duty to assist by providing a medical opinion with regard direct service connection. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Accordingly, the Board finds that the evidence available at the time of the March 2023 decision on appeal contains no evidence of in-service incurrence or continuity of symptoms since service; nor is there otherwise any probative evidence establishing a possible relationship between bilateral lower or upper extremity radiculopathy and active service. As such, VA's duty to obtain a VA examination or opinion was not triggered. Turning to the theory of secondary service connection, the Board finds that the probative evidence of record reflects that the Veteran's bilateral lower extremity radiculopathy is secondary to his lumbar spine disability, and his bilateral upper extremity radiculopathy is secondary to his cervical spine disability. In this regard, the Board finds the May 2018 VA examiner's opinion is the most probative evidence of record regarding the etiology of the Veteran's neurological symptoms. The examiner considered the Veteran's medical treatment records, as well as the Veteran's reported symptoms, and indicated that the Veteran's history and physical examination were consistent only with cervical and lumbar radiculopathy. Notably, these findings are also supported by the July 2018 neck and back examinations, the February 2023 neck examination, and the December 2017 and October 2022 VA treatment records. Indeed, there is no medical evidence of record indicating any other plausible etiology for the the Veteran's bilateral lower and upper extremity radiculopathy. As noted above, however, to establish secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Here, the Veteran's bilateral lower and upper extremity radiculopathy has been attributed to his cervical and lumbar spine disabilities, respectively, disabilities for which the Veteran is not currently service-connected. Therefore, secondary service connection is not available, as his bilateral lower and upper extremity radiculopathy cannot be service-connected secondary to a nonservice-connected disability. 38 C.F.R. § 3.310. Based on the foregoing, the Board finds that the evidence is persuasively against a grant of service connection for a neurological disorder of the bilateral lower and upper extremities, to include peripheral neuropathy and radiculopathy, on a direct or secondary basis. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the claims, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, 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.