Citation Nr: 1315988 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 07-38 777 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for service-connected postoperative chronic compartment syndrome of the left leg, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD V. Chiappetta, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to October 1990. This case comes before the Board of Veterans' Appeals (the Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (the RO). In a June 2005 rating decision, the RO denied entitlement to an increased rating for the Veteran's service-connected chronic compartment syndrome of the left leg, currently evaluated as 20 percent disabling. Following the submission of additional evidence received within one year of this rating decision, the RO readjudicated the issue in September 2006 and May 2007 rating decisions, which also included denials of the benefit sought. The Veteran timely submitted a Notice of Disagreement in June 2007 and perfected his appeal by way of a December 2007 VA Form 9 (Appeal to the Board of Veterans' Appeals). The Veteran testified at a hearing before the undersigned in September 2010. A transcript of the hearing is of record. The Board has remanded the Veteran's left leg increased rating claim on two prior occasions, first in March 2011 and again in February 2013. The Appeals Management Center (AMC) most recently readjudicated the Veteran's claim in an April 2013 Supplemental Statement of the Case, and his claims file has been returned to the Board for further appellate review. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board regrets having to remand the Veteran's appeal again at this time. However, a remand is necessary to ensure compliance with the Board's prior remand instructions, and for further evidentiary development. I. Compliance with the February 2013 Board Remand Instructions In its February 2013 remand instructions, the Board specifically requested that a VA examiner report the Veteran's ankle/brachial index. Although the Veteran appeared for a VA examination in March 2013, the examiner included no such calculation in her report. See the March 2013 VA examiner's report, at 19 (simply noting the word "PENDING" where the ankle/brachial index was to be indicated). This calculation is critical to VA's inquiry into whether the Veteran's service-connected left leg disability manifests in symptoms warranting the assignment of a disability rating higher than 20 percent. Indeed, 38 C.F.R. § 4.104, Diagnostic Codes 7114 [arteriosclerosis obliterans] and 7115 [thrombo-angitis obliterans], for example, both include consideration of the ankle/brachial index in the criteria for disability ratings as high as 100 percent. In addition to failing to report the ankle/brachial index, the March 2013 VA examiner also provided inadequate and seemingly contradictory responses to the Board's February 2013 inquiries as they pertained to the current severity of the Veteran's left leg disability. The Board specifically requested in February 2013 that the VA examiner comment on the presence or absence of neurological and/or muscular symptomatology that is "associated with the Veteran's service-connected chronic postoperative compartment syndrome of the left leg," and if present, to identify the nerve(s) and muscle group(s) involved. The examiner was also to discuss the Veteran's complaints of "drop foot" or dragging foot, indicating whether such symptoms are associated with neurological or muscular manifestations of the compartment syndrome disability. Although the March 2013 VA examiner did discuss the Veteran's current neurological and muscular symptomatology, it remains unclear as to whether such symptoms are in fact manifestations of the Veteran's service-connected left leg disability, manifestations of a different nonservice-connected disability, or are in fact separate disabilities in and of themselves. Indeed, on page 12 of her report, the VA examiner pertinently listed "muscle spasms, daily swelling, numbness of toes and feet at times, foot and ankle pain, [and] foot dragging" as signs and/or symptoms related to his left lower leg compartment syndrome. Curiously however, on page 19 of the same report, without referencing any specific condition or symptom, the VA examiner checked a box indicating that the "claimed condition" was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In the section of the report immediately following, reserved for "rationale," the examiner specifically discussed the Veteran's left leg neurological and muscular symptomatology, to include a history of foot dragging, but did not offer any discussion as to whether such symptoms were in fact related to the Veteran's service-connected disability. Notably, after EMG testing in the weeks following the examination, a separate diagnosis of left peroneal nerve neuropathy was rendered, and again, no physician discussed whether this neuropathy was in any way related to the Veteran's service-connected left leg disability. As noted by the Board in its February 2013 remand, compartment syndrome is "a condition in which increased tissue pressure in a confined anatomical space causes decreased blood flow leading to ischemia and dysfunction of the contained myoneural elements, marked by pain, muscle weakness, sensory loss, and palpable tenseness in the involved compartment. Ischemia can lead to necrosis resulting in permanent impairment of function." Dorland's Illustrated Medical Dictionary 1814 (30th ed. 2003). Because the Board specifically requested the VA examiner to comment upon the presence or absence of neurological and muscular symptoms that are related to the Veteran's claudication disability, and because it appears that the VA examiner pointed out such symptoms, but did not clearly articulate which symptoms or conditions were attributable to the Veteran's service-connected left leg disability, the Board believes that in addition to calculating the Veteran's ankle/brachial index, another VA examiner must also reassess the Veteran's left leg symptomatology and clarify to what extent such symptoms, if any, are related to his service-connected condition. Thus, the Veteran's appeal must be remanded again to ensure compliance with its prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). II. Potentially Relevant Outstanding Records In a recently obtained June 2012 VA treatment report, the Veteran identified employment with the U.S. Postal Service, and specified that he had an active workers' compensation claim filed for "sciatic nerve pain" following a fall at work about three weeks prior to this treatment date. See the June 27, 2012 VA Ambulatory Care Note. The Veteran indicated that he was seeing Dr. D.H. for the residuals of this fall, and that Dr. D.H. had given him a muscle relaxer and steroid injections or a steroid pack. The Board notes that it has attempted to identify and obtain treatment records from Dr. D.H. in the past. Indeed, at the September 2010 hearing, the Veteran reported that he had previously seen Dr. D.H. for left leg treatment, although not for at least three or four years prior to the hearing. After receiving appropriate authorization, VA associated records from Dr. D.H. dated through 2003 with the Veteran's file. In February 2013, the Board instructed that additional authorization should be requested from the Veteran so that records dated subsequent to 2003 could be obtained. Although the AOJ sent the Veteran this request in a February 2013 letter, VA received no response from the Veteran. It is clear that the Veteran has continued treatment with Dr. D.H. for medical care. Indeed, as noted above, as recently as June 2012 he received treatment for sciatic nerve pain from Dr. D.H. following a fall at work. In addition, the Veteran's workers' compensation claim appears to involve an injury with resulting nerve symptomatology that, at least at the time, affected his lower extremities. Pertinently, once VA becomes aware of the existence of relevant records before deciding the claim, VA must notify the claimant of the records and request that the claimant provide a release for the records in accordance with 38 C.F.R. § 3.159(e)(2). Thus, based on the above information, the Board believes that there may be relevant records that remain outstanding that would aid in making a fully informed decision as to the Veteran's increased rating claim for his left leg disability. On remand, efforts should again be made to obtain relevant treatment records from Dr. D.H. In addition, records pertaining to the Veteran's June 2012 workers' compensation claim should be requested as well. The Board notes that printouts of the Veteran's VA treatment records dated from July 2011 to August 2012 have been associated with the Veteran's claims folder. To the extent that the Veteran may have received any additional treatment for the left leg from the VA Outpatient Clinic in Lubbock, Texas since August 2012, recent treatment records from that facility should also be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. With any needed assistance from the Veteran, obtain and associate with the claims file treatment records from Dr. D.H. relating to private treatment for the Veteran's left leg since 2003 up to the present day. In light of the recent change at 38 U.S.C.A. § 5103A(b)(2)(B), following receipt of authorization, two attempts should be made to obtain relevant private treatment records, unless a formal finding can be made that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). If such records are unavailable, the claims file should be clearly documented to that effect. 2. With any needed assistance from the Veteran, obtain and associate with the claims file all records relating to the Veteran's workers' compensation claim following a June 2012 fall while working for the U.S. Postal Service. All attempts to procure these records should be documented in the file, and as above, if such records are unavailable, the claims file should be clearly documented to that effect. 3. Obtain and associate with the claims file all treatment records from the Lubbock, Texas VA Outpatient Clinic dated from August 2012 to the present. If such records are unavailable, the claims file should be clearly documented to that effect. 4. After completing the development outlined in items (1)-(3) above, schedule the Veteran for an examination to assess the nature and severity of his service-connected chronic postoperative compartment syndrome of the left leg. The entire claims file (i.e., both the paper claims file and any relevant medical records contained in the Veteran's Virtual VA eFolder) should be made available to and be reviewed by each examiner, and it should be confirmed that such records were available for review. In completing this examination, the examiner is specifically requested to: (a.) report the Veteran's ankle/brachial index; (b.) identify whether the Veteran's chronic postoperative compartment syndrome of the left leg manifests in any the following: (i.) claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour; (ii.) claudication on walking less than 25 yards on a level grade at 2 miles per hour; (iii.) trophic changes (thin skin, absence of hair, dystrophic nails); (iv.) persistent coldness of the left leg; (v.) ischemic limb pain at rest; (vi.) deep ischemic ulcers; (c.) conduct range of motion studies of the left knee and the left ankle and foot, and discuss any functional loss as a result of pain or other factors; (d.) conduct a neurological examination of the left lower extremity. The examiner should identify each the Veteran's left leg neurological problems, and for each, specifically discuss whether such manifests as (i.) a symptom of his service-connected postoperative compartment syndrome of the left leg; (ii.) a symptom of an unrelated nonservice-connected disability; or (iii.) as a wholly separate disease entity in and of itself. If a separate disease entity, the examiner should further determine whether it is at least as likely as not (50 percent or greater probability) that such disability was caused or aggravated beyond its natural progression by the Veteran's service-connected left leg compartment syndrome. In particular, the examiner should discuss the Veteran's recent diagnosis of left peroneal nerve neuropathy, as shown by EMG testing on March 31, 2013, as well as his history of "drop foot" or dragging foot. All pertinent symptomatology and findings should be reported in detail, and any indicated diagnostic tests should be accomplished; (e.) conduct an examination of the muscles of the left lower leg. The examiner should identify each the Veteran's left leg muscular problems, to include the muscle group or groups affected, if any, and for each, specifically discuss whether such manifests as (i.) a symptom of his service-connected postoperative compartment syndrome of the left leg; (ii.) a symptom of an unrelated nonservice-connected condition; or (iii.) as a wholly separate disease entity in and of itself. If a separate disease entity, the examiner should further determine whether it is at least as likely as not (50 percent or greater probability) that such disability was caused or aggravated beyond its natural progression by the Veteran's service-connected left leg compartment syndrome. In particular, the examiner should discuss the Veteran's history of "drop foot" or dragging foot. All pertinent symptomatology and findings should be reported in detail, and any indicated diagnostic tests should be accomplished. A rationale for all opinions expressed should be provided. If any examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue of entitlement to an increased rating for service-connected postoperative chronic compartment syndrome of the left leg, currently evaluated as 20 percent disabling. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).