Citation Nr: 1339017 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 06-07 135A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for bilateral lateral femoral cutaneous neuropathy, claimed as secondary to service-connected low back disability. 2. Entitlement to service connection for hypertension. 3. Entitlement to higher evaluations for asthma, rated 10 percent disabling from April 30, 2007, to January 3, 2013, and 30 percent disabling from January 4, 2013. 4. Entitlement to higher evaluations for lumbar disc disease, rated 20 percent disabling from November 13, 2003, to August 25, 2008, and 40 percent disabling from August 26, 2008. 5. Entitlement to higher evaluations for left lower extremity radiculopathy associated with lumbar disc disease, rated 10 percent disabling from November 13, 2003, to July 8, 2009, and 20 percent disabling from July 9, 2009. 6. Entitlement to higher evaluations for residuals of right shoulder injury, impingement syndrome, rated 10 percent disabling from August 11, 2004, to June 23, 2009, and 20 percent disabling from June 24, 2009. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from October 1986 to November 1990. The appeal comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In a March 2004 rating decision, the RO increased the evaluation for the Veteran's low back disability from noncompensable to 20 percent disabling, effective November 13, 2003. The RO also granted service connection for left lower extremity radiculopathy and assigned a 10 percent evaluation, effective November 13, 2003. In an April 2005 decision, the RO, in pertinent part, increased the evaluation for the Veteran's service-connected right shoulder disability from noncompensable to 10 percent disabling, effective August 11, 2004. The RO also, pertinently, continued a previously assigned 10 percent evaluation for the Veteran's low back disability, as well as the previously assigned noncompensable evaluation for reactive airway disease. In a January 2008 rating decision, the RO pertinently denied service connection for hypertension and bilateral lateral femoral cutaneous neuropathy with numbness and paresthesias. The RO also continued the previously assigned evaluations for the Veteran's low back disability, left lower extremity radiculopathy, and right shoulder disability. It increased the evaluation for service-connected asthma from noncompensable to 10 percent, effective April 30, 2007. In a July 2009 rating decision, the RO increased the evaluation for service-connected right shoulder disability from 10 percent disability to 20 percent disabling, effective June 24, 2009. It also increased the evaluation for left lower extremity radiculopathy from 10 percent disabling to 20 percent disabling, effective July 9, 2009. The Board remanded the appealed claims in September 2012, and they now return to the Board for further review. Prior to their return, the Appeals Management Center (AMC), by a July 2013 rating decision, granted an increased evaluation for asthma to 30 percent disabling, effective January 4, 2013. In general, a VA claimant is presumed to be seeking the maximum benefit allowed by law and regulation. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the Board finds that the increased rating claims remain in controversy, and hence in appellate status, because less than the maximum benefit available has been awarded. The claim for service connection for hypertension as well as the claims for higher evaluations for asthma, lumbar disc disease, and left lower extremity radiculopathy, and a right shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The most probative evidence of record shows that bilateral lateral femoral cutaneous neuropathy developed as secondary to the Veteran's service-connected lumbar disk disease. CONCLUSION OF LAW The criteria for establishing service connection for bilateral lateral femoral cutaneous neuropathy have been met. 38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013). However, because this decision is granting service connection for bilateral lateral femoral cutaneous neuropathy, the Board finds that no discussion of VA's duty to notify and assist is necessary because any failure to provide adequate notice is harmless error. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). II. The Claim The Veteran contends, in part, that his bilateral lateral femoral cutaneous neuropathy is due to his service-connected lumbar disk disease. Establishing service connection generally requires medical or, in certain circumstances, lay 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. See 38 C.F.R. § 3.303; also see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptomatology after service is required for service connection if it is one of the specific disorders listed at 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In making all determinations, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id, at 303-04. Initially, the Board notes that the Veteran has been service connected for lumbar disk disease since November 1990. As to a relationship between the bilateral lateral femoral cutaneous neuropathy and the Veteran's service-connected lumbar disk disease, the July 2013 addendum it was opined that the Veteran's bilateral lateral femoral cutaneous neuropathy was causally related to the appellant's service-connected lumbar disk disease and was a condition distinct from his bilateral lower extremity radiculopathy, which was also secondary to the lumbar disk disease. This medical opinion is not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The AMC in its July 2013 supplemental statement of the case denied service connection for bilateral lateral femoral cutaneous neuropathy based on the rule against pyramiding in 38 C.F.R. § 4.14 (2013), which precludes assigning compensation based on the same symptoms under multiple diagnostic codes, or duplicative rating. However, the Board notes that the rule against assigning duplicative ratings is not preclusive of granting service connection for a distinct disability, even if a ratable distinct impairment is not presently implicated. As the examiner concluded in the July 2013 addendum opinion, the Veteran's femoral cutaneous neuropathy is a condition distinct from his lower extremity radiculopathy. Therefore, the Board finds that any overlapping symptomatology does not preclude granting service connection for both disabilities. In summary, an affirmative medical opinion has been obtained linking the Veteran's bilateral lateral femoral cutaneous neuropathy to his service connected lumbar disk disease and the Board finds this opinion the most probative evidence of the record. See 38 C.F.R. § 3.310; Allen, supra. Therefore, the Board finds that the evidence supports a grant of service connection for a bilateral lateral femoral cutaneous neuropathy on a secondary basis. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.310; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral lateral femoral cutaneous neuropathy is granted. REMAND As to the claims for higher evaluations for lumbar disc disease as well as the left lower extremity radiculopathy, the Board finds that adjudication of these claims may not go forward until the Veteran is provided with a VA examination to ascertain the severity of the neurological symptomatology attributable to his bilateral lateral femoral cutaneous neuropathy, as opposed to his already service connected lumbar disc disease and left lower extremity radiculopathy, and the RO/AMC issues a rating decision that assigns a rating for each service-connected neurological disability which does not compensate the Veteran more than one time for the same symptoms. 38 C.F.R. §4.14; Also see Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). As to all the issuance on appeal, following the issuance of the July 2013 supplemental statement of the case additional pertinent evidence in the form of VA treatment records were added to the Virtual VA claims file in August 2013. Moreover, the Veteran's representative did not thereafter waive agency of original jurisdiction review of these records in its Brief dated later in August 2013. Therefore, the Board finds that a remand for a supplemental statement of the case is required. See 38 C.F.R. § 19.31 (2012) (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The record shows that the Veteran receives ongoing treatment from the Phoenix VA Medical Center. Therefore, the Board finds that while the appeal is in remand status his more recent treatment records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, these issues are REMANDED to the RO/AMC for the following actions: 1. Associate with the claims file, physically or electronically, all of the Veteran's post-August 2013 treatment records from the Phoenix VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. The RO/AMC should contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on his response, any additional VA or private treatment records should be obtained and associated with the claims file, with the Veteran's assistance as appropriate. 3. Thereafter, prior to effectuation of the Board's grant of service connection for bilateral lateral femoral cutaneous neuropathy by the assignment of an initial rating or ratings, the Veteran should be afforded a VA examination by an examiner with specialized knowledge of neurological disorders of the spine and the lower extremities, to address the nature and severity of his service-connected lumbar disk disease, any radiculopathy into each of the lower extremities, and bilateral lateral femoral cutaneous neuropathy. The claims file and all electronic records, including any additional evidence obtained, should be made available to the examiner for review. All tests and studies deemed necessary by the examiner, including an electromyography (EMG) and a nerve conduction study, should be conducted. The tests and studies performed, and their results, should be included and discussed in the examination report. The examiner should record pertinent medical complaints, symptoms, and clinical findings, including range of motion, and comment, separately for each condition, on the functional limitations, if any, caused by lumbar disk disease, any radiculopathy into each of the lower extremities, and bilateral lateral femoral cutaneous neuropathy. To the extent possible, the examiner should differentiate symptoms and functional impairment caused by the lumbar disk disease, any radiculopathy into each lower extremity, and lateral femoral cutaneous neuropathy in each lower extremity. To the extent symptoms cannot be differentiated, the examiner should explain these circumstances, and note symptoms and disability caused by more than one of these conditions, specifically addressing which conditions are contributing to what symptoms and disability. Regarding the spine, the examiner should determine the range of motion of the Veteran's thoracolumbar spine in degrees, using a goniometer and noting by comparison the normal range of motion, with standard ranges provided for comparison purposes. If pain is present on any motion, the Veteran should be instructed to indicate to the examiner at what degree the pain begins and the examiner should report this finding. The examiner should address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement as a result of the Veteran's service-connected lumbar disk disease after repetitions of the range of motion tests. Any identified functional impairment due to weakened movement, incoordination, excess fatigability, or pain on movement should, if feasible, be characterized, as an approximation of degree of disability, in terms of additional degrees of limitation of motion lost. With respect to any subjective complaints of pain, the examiner should comment on whether pain is visibly manifested on movement of the affected part, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected disability, the presence or absence of changes in condition of the skin indicative of disuse, and the presence or absence of any other objective manifestations that would demonstrate disuse or functional impairment due to pain attributable to the disability. Any Waddell's signs present should also be addressed and explained. The examiner should also address medications taken for any of these conditions, and any effects on the Veteran's functioning resulting from medications taken. The examiner should specifically state whether any neurologic symptoms found are caused by the Veteran's service-connected lumbar disk disease, any radiculopathy into each lower extremity, any lateral femoral cutaneous neuropathy in each lower extremity, or are due to other causes. The examiner should also discuss the nature and severity of any intervertebral disc syndrome (IVDS) found and/or incapacitating episodes due to IVDS, if any. Additionally, if IVDS is present, the examiner should address the frequency and duration of any IVDS found and/or incapacitating episodes in each past 12 month period since November 2003 due to IVDS, as shown by any submitted medical letters addressing the necessity of bed rest for treatment of intervertebral conditions. The examiner should also, separately if possible, address the degree to which the Veteran's service-connected lumbar disk disease, any radiculopathy into each of the lower extremities, and bilateral lateral femoral cutaneous neuropathy, impacts his capacity to obtain or sustain gainful employment. If the examiner cannot provide answers to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. A detailed explanation for all conclusions reached by the examiner must be provided. In this regard, citations to the record or relevant medical principles should be included as necessary to explain the opinion. 4. The RO/AMC should notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained and associated with the Veteran's claims file that shows that notice of scheduling the examination was sent to his last known address. Documentation should be also be obtained and associated with the Veteran's claims file if any notice that was sent was returned as undeliverable. 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal should be readjudicated. As addressed above, the initial rating assigned for bilateral lateral femoral cutaneous neuropathy should be adjudicated concurrently with the adjudicative review of ratings assigned for the Veteran's lumbar disk disease and lower extremity radiculopathy. In so doing, the RO/AMC should exercise care to avoid pyramiding, pursuant to 38 C.F.R. § 4.14. 6. If any benefit sought on appeal remains denied, the claimant should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits to include a summary of the evidence received since the July 2013 SSOC included the VA treatment records added to Virtual VA in August 2013, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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). ______________________________________________ NEIL T. WERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs