Citation Nr: 1802399 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-40 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a disability rating greater than 20 percent for left anterior crural neuropathy (to include left lower extremity neuropathy) associated with left retroperitoneal sarcoma status post resection. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from June 1956 to June 1959 and from September 1959 to January 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In a January 2013 rating decision, the RO granted service connection for left retroperitoneal sarcoma status post resection with scar, and assigned a 100 percent disability rating, effective April 6, 2012, under 38 C.F.R. § 4.73, Diagnostic Code 5329. The Note accompanying Diagnostic Code 5329 states that a 100 percent disability rating shall continue beyond the cessation of any surgery, radiation treatment, antineoplastic chemotherapy or other therapeutic procedures, and that six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. If there is no local recurrence or metastasis, the disability is to be rated on residual impairment of function. In a March 2015 rating decision, the RO proposed to reduce the 100 percent disability rating for the Veteran's retroperitoneal sarcoma to noncompensable based on a February 2015 VA examination. In a March 2016 rating decision, the RO reduced the Veteran's disability rating for retroperitoneal sarcoma to noncompensable, effective June 1, 2016, based on the results of VA examinations conducted in February 2015 and December 2015. The March 2016 rating decision also awarded service connection for left anterior crural neuropathy as a residual of retroperitoneal sarcoma, and assigned a 20 percent rating, effective June 1, 2016; granted service connection for anemia as a residual of retroperitoneal sarcoma, and assigned a noncompensable rating, effective June 1, 2016; and discontinued the Veteran's special monthly compensation, effective June 1, 2016. The Veteran appealed the disability rating assigned for the residuals of retroperitoneal sarcoma associated with his left lower extremity. Although the Veteran was provided VA examinations in February 2015 and December 2015, review of the private medical treatment records submitted by the Veteran suggest that the residuals of his retroperitoneal sarcoma are more severe than reflected in those examination reports. Specifically, the VA examinations show no loss of muscle strength, normal gait, and no pain associated with his left leg disability, but a July 2016 private treatment record reports that there was reduced strength, weakness, abnormal ambulation, and burning pains. Accordingly, an updated VA examination is required to determine the current severity of his neuropathy. Additionally, private treatment records dated in April 2014 and July 2016 note that the Veteran's left leg disability resulted in reduced hip flexion as well as impairment to the left anterolateral muscle and surrounding soft tissue. The July 2016 private treatment record states that the surgery performed to remove the retroperitoneal sarcoma resulted in a significant portion of his left anterolateral muscle and surrounding tissue excised which has permanently disabled him from standing and ambulating normally with decreased left lower extremity power, strength, and extension ability, and has permanent, irreversible weakness, and burning pains in this area due to the initial liposarcoma tumor and requirement for extensive wide excision and postoperative x-ray therapy. The private treatment records suggest that the Veteran's left retroperitoneal sarcoma may have residuals impacting the function of his left hip as well as the muscles in his left thigh, in addition to reduced strength, weakness, numbness, and burning pains. As the Veteran has not been provided with VA examinations assessing the impact of his retroperitoneal sarcoma on his left hip and left leg muscle function, VA examinations should be conducted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The Veteran must be provided with a VA examination to determine the current severity of his left lower extremity neuropathy. The electronic claims file must be made available to the examiner, and the examiner must specify in the examination report that the claims file was reviewed. Any indicated diagnostic tests and studies must be accomplished. An electromyogram must be conducted to determine the nerve(s) involved. All pertinent symptomatology and findings should be reported in detail. After review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether the manifestations of the Veteran's left lower extremity neuropathy are organic and/or sensory in nature; and whether the Veteran's neuropathy manifests as complete paralysis of the anterior crural nerve with paralysis of the quadriceps extensor muscles; or incomplete paralysis that is mild, moderate, or severe in degree. The examiner should also review and address the private medical evidence which shows reduced strength, weakness, abnormal ambulation, and burning pains in the left lower extremity. 2. Provide the Veteran with a VA hip examination to assess the nature and severity of any left hip disability associated with his left retroperitoneal sarcoma status post resection. The Veteran's claims file and a copy of this Remand must be reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. The examiner should test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the right and left hip joints. If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner should also note extension, flexion, abduction, adduction and rotation of each thigh and whether ankylosis exists in either hip. The examiner must describe all functional limitations resulting from the Veteran's left hip disability. 3. Provide the Veteran with a VA muscles examination to assess the nature and severity of any muscle disability associated with his left retroperitoneal sarcoma status post resection. The Veteran's claims file and a copy of this Remand must be reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. Based on a physical examination of the Veteran's left lower extremity, the examiner is asked to determine: a) the degree of injury to all muscle groups involved, to include whether there is more than one muscle group involved in the same anatomical region, and the functions affected; and b) whether the disability associated with each affected muscle group would be considered slight, moderate, moderately severe, or severe, to include commenting on the presence or absence of the cardinal signs and symptoms of muscle disability, including loss of power, weakness, lowered threshold of fatigue, fatigue pain, impairment of coordination, and uncertainty of movement. The examiner should specifically address the private medical evidence which reflects that the Veteran had a significant portion of his left anterolateral muscle and surrounding soft tissue excised. 4. Notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). 5. When the above development has been completed, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and afford the Veteran and his representative an adequate opportunity to respond, prior to returning the issue to the Board for appellate review. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).