Client Win: CAVC No. 21-0049 (BVA inadequately reasoned denial of service connection for peripheral neuropathy).
This case involves the BVA's clear error: in denying service connection for peripheral neuropathy, the BVA judge and staff attorney failed to acknowledge that the record contained the veteran's medical diagnosis of peripheral neuropathy of the upper extremity.
The appeal was resolved through a joint motion to remand.
ISSUE ON APPEAL TO THE CAVC (BVA inadequately reasoned denial of service connection for peripheral neuropathy).
In any claim for service connection, including service connection of peripheral neuropathy, a veteran must show three elements: an in-service event, a current disability, and nexus between the two.
In this case, the question before the Court was whether the BVA clearly erred in its failure to observe that a veteran had been diagnosed with peripheral neuropathy of the upper extremities.
In denying service connection for peripheral neuropathy of the upper extremities, the BVA had written that “the medical evidence of record reveals no evidence that [Appellant] is currently diagnosed with diabetic peripheral neuropathy in the right and/or left upper extremities."
However, the BVA's attorneys erred because they either ignored or overlooked a VA medical opinion that the veteran had "incomplete paralysis of the left upper extremity," a fact that contradicted the BVA's own finding that there were "no symptoms or diagnoses with regard to the upper extremities."
Because the Court cannot review a BVA decision for clear error when the BVA decision lacks adequate reasons and bases, the VA's Office of General Counsel agreed with Attig | Currant | Steel attorney Haley Smith, who had proposed to vacate the BVA decision and remand it for a proper re-adjudication.
The government's attorney agreed to a Joint Motion to Remand because the BVA committed error when it failed to provide adequate reasons and bases for its decision denying service connection for peripheral neuropathy because the BVA and its attorneys failed to consider that the veteran "had symptoms attributable to diabetic peripheral neuropathy, to include moderate intermittent pain and moderate paresthesias and/or dysesthesias of the bilateral upper extremities."
If you believe the VA or BVA issued a decision that overlooked critical medical records in your claim or appeal, or wrongly denied you service connection for peripheral neuropathy please click here to have Attig | Curran | Steel take a look at your case.
OGC Attorney: Timothy G. Joseph (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Haley Smith (link to bio)
Board of Veterans Appeals Veterans Law Judge: S.B. Mays (link to blog posts involving this BVA VLJ)
Attorney for the BVA: Achiya Yaffe (link to attorney's bio on LinkedIn)
Vets’ Rep at BVA: Brian D. Hill, Attorney (link to attorney's bio on firm's website)
Date of BVA Decision: September 11, 2020
Date of CAVC Joint Motion to Remand: June 14, 2021