Citation Nr: 1806193 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 05-38 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for peripheral neuropathy of both legs, to include as secondary to a service-connected disability or disabilities. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Husain, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1972 to November 1979. This appeal arose before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Phoenix, Arizona, Department of Veterans Affairs (VA), Regional Office (RO) that denied entitlement to service connection for peripheral neuropathy. In January 2008, the Veteran testified before a Veterans Law Judge (VLJ) at a personal hearing conducted at the RO. A transcript of this proceeding has been included in the claims folder. In April 2008, the Board remanded this issue for further development. Following completion of this development, the Board issued a decision in June 2010 that, in pertinent part, denied entitlement to service connection for peripheral neuropathy. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC). In January 2011, CAVC granted a Joint Motion for Remand (JMR) by the Veteran's representative and the Secretary of VA, vacating the June 2010 Board decision and then remanding the instant claim to the Board. In September 2011, the Board remanded the claim for additional evidentiary development, which was completed by the RO. The case was then referred for a VHA opinion, which was obtained in November 2012. The Board again remanded this claim in April 2013, instructing that additional treatment records be obtained and a new examination conducted. In November 2013, the Board requested an Independent Medical Opinion; this was provided on November 26, 2013. In May 2014, the Board issued a decision that awarded service connection for lumbar radiculopathy in both legs; the decision also denied service connection for peripheral neuropathy of both legs. The Veteran appealed this decision to CAVC. In July 2015, CAVC granted a JMR by the Veteran's representative and the Secretary of VA, vacating that part of the Board's May 2014 decision that had denied service connection for peripheral neuropathy of both legs. The case was remanded to the Board for actions consistent with the JMR. In March 2016, the Board remanded the Veteran's issue for additional development consistent with the JMR. The case has since returned to the Board for further consideration. In January 2016, the Veteran was informed that the VLJ who conducted the January 2008 hearing was no longer employed at the Board. He was offered the opportunity for a new hearing before a VLJ who would decide his case. In February 2016, the Veteran's counsel declined the offer for a new hearing. A review of the claims file shows that a rating decision dated February 18, 2014 denied entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU). On May 30, 2014, VA received a Notice of Disagreement (NOD) with the denial of entitlement to a TDIU in the February 2014 rating decision. Subsequently, the Veteran was provided with an SOC with respect to this issue on October 23, 2017. On November 27, 2017, the Veteran's attorney submitted a VA Form 9 and attached letter indicating the Veteran wanted to appeal the issue of entitlement to a TDIU rating. Additionally, a review of the claims file shows that a rating decision dated October 24, 2014 granted a rating of 50 percent, but not higher, for a depressive disorder effective May 8, 2014. On September 28, 2015, VA received an NOD with the denial of an evaluation in excess of 50 percent for a depressive disorder in the October 2014 rating decision. Subsequently, the Veteran was provided with an SOC with respect to this issue on October 23, 2017. In the same November 27, 2017 VA Form 9 and attached letter as referenced above, the Veteran's attorney indicated he wanted to appeal the issue of an evaluation in excess of 50 percent for a depressive disorder. The Veteran did not elect a hearing. Although the issues of entitlement to a TDIU rating and entitlement to a higher rating for depressive disorder are currently in perfected appellate status, the Board defers adjudication until the Agency of Original Jurisdiction (AOJ) properly certifies the issues. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND While further delay is regrettable, additional development is warranted before the Veteran's claim may be decided. The Veteran's medical record presents numerous conflicting reports as to the diagnosis and etiology of peripheral neuropathy, and as to whether the Veteran's peripheral neuropathy is related to a service-connected disability. Therefore, a new examination is necessary to review the Veteran's medical history, perform diagnostic testing of the Veteran's disability, and accurately diagnose the Veteran's condition and provide a related etiology. The Veteran's medical history is briefly summarized as follows. In November 2002, the Veteran reported pain and numbness in both lower extremities. An electromyelogram ("EMG") found no evidence of right lumbar radiculopathy; however, there was a potential for peripheral neuropathy. (See Virtual VA, "CAPRI," received December 27, 2013, pp. 215-216.) A February 2005 VA podiatry note indicated peripheral neuropathy of unknown etiology. (Id. at pp. 210-211) In September 2006, the Veteran submitted a letter from a private physician stating that the Veteran was diagnosed with peripheral neuropathy, which was related to the Veteran's diabetes (the Veteran is not service connected for diabetes). (See VBMS, "Third Party Correspondence," received September 25, 2006.) A VA neurology note from that month also references a September 2005 EMG and nerve conduction study that found evidence consistent with "very mild peripheral sensory motor neuropathy." (See Virtual VA, "CAPRI," received December 27, 2013, p. 203.) The Veteran underwent a VA examination in July 2006 and was diagnosed with scattered primarily sensory peripheral neuropathy, which is "often times seen with diabetes" and can occur in pre-diabetic stages. (See VBMS with , "VA Examination," received July 17, 2006.) In a September 2006 letter, a VA physician noted that there was evidence of a radicular neuropathy consistent with lumbar root problems, and diffuse peripheral neuropathy consistent with metabolic conditions such as diabetes mellitus. (See VBMS, "Third Party Correspondence," received September 25, 2006.) The Veteran underwent a VA examination in April 2009 and was diagnosed with peripheral neuropathy of the lower extremities, not related to spinal disease, spinal cord compression, or disc disease. This condition, the examiner opined, would present as radiculopathy or myelopathy. The examiner added that the peripheral neuropathy may be secondary to diabetes; otherwise the cause was unknown. Additionally, the examiner opined that the neuropathy was not secondary to any other service-connected condition. (See VBMS, "VA Examination," received April 10, 2009.) A February 2010 electro-diagnostic examination revealed bilateral lumbosacral radiculopathy and diabetic polyneuropathy. The examiner stated that it was "difficult to differentiate between the obvious, chronic polyneuropathy and potential chronic L5-S1 radiculopathy." (See VBMS, "Third Party Correspondence," received February 12, 2010.) A VA examination was performed on November 4, 2011, where the examiner found that there was "no indication of radiculopathy" and that the etiology of the peripheral neuropathy was "more likely than not the diabetes mellitus." (See VBMS, "VA Examination," received November 8, 2010.) The Board referred Veteran's case to a medical expert in October 2012. The medical expert opined in November 2012 that "1) the likely cause of the Veteran's peripheral neuropathy was diabetes; 2) the Veteran's service-connected disabilities did not contribute to his neuropathy; and 3) the Veteran did not have radiculopathy as a consequence of his service-connected back disability." The expert acknowledged that lumbar joint or disc disease could exacerbate the peripheral neuropathy, "but only if mechanically-induced radiculopathy were to have developed at an anatomical level or levels where pathology was present at the time of the determination of service connection." (See VBMS, "VA Memo," received December 4, 2012.) In January 2013, a private physician noted that the Veteran's symptoms were consistent with peripheral neuropathy and lumbar radiculopathy. In February 2013, the Veteran was diagnosed with low back pain and bilateral lumbar radiculopathy. A private medical examiner noted lower extremity symptoms that were reported to have been ongoing for 25 years, with pain radiating to the buttocks, a burning sensation in the thighs bilaterally and increased sensitivity in the bilateral posterior calves and feet. (See VBMS, "Medical Treatment Record - Non-Government Facility," received February 6, 2013.) In November 2013, the Board requested a specialist's opinion. The examiner noted that it was unclear whether the Veteran had diabetes, and that the cause of the Veteran's peripheral neuropathy was uncertain. Regardless of the cause, he found that it was not caused or aggravated by the Veteran's service-connected knee disabilities, low back disability, deep vein thrombosis, tinnitus, bilateral hearing loss or right ankle disability. Additionally, the examiner opined that "the lumbar radiculopathies are likely caused by the degenerative arthritis in his lumbar spine." Finally, the examiner determined that the Veteran's lumbar radiculopathy was not related to the Veteran's peripheral neuropathy and could not exacerbate it. (See VBMS, "Third Party Correspondence," received November 15, 2013.) During a VA examination conducted on July 23, 2013, and the examiner opined that it is less likely than not that the Veteran's radiculopathy is aggravating the Veteran's peripheral neuropathy. The examiner stated that the Veteran has bilateral lower extremity neuropathy of unknown origin, and that, at present, there is no clinical evidence of radiculopathy and there is no evidence of radiculopathy by EMG on electrodiagnostic testing. The examiner stated that "In connection with various opinions, I will have to believe that these were mere assumptions as per Veteran's own statement and if that were true I unfortunately have not been provided with the evidence. Therefore I will state that the cause of his neuropathy is IDIOPATHIC." (Capitals in original.) The examiner stated that while he was able to review the Veteran's private medical opinions, he did not have a copy of the Veteran's claims file. (See Virtual VA, "CAPRI," received October 8, 2013.) In a VA examination from January 8, 2014, the examiner stated the Veteran does not have any radicular pain or any other signs or symptoms due to radiculopathy. The examiner noted an EMG from January 2014 was consistent with peripheral neuropathy. The examiner noted, "While the veteran is reporting symptoms of radicular pain and foot numbness, EMG findings suggest these symptoms are more likely from peripheral neuropathy, which would not be attributed to the chronic lumbar strain. I have completed this DBQ only in regard to chronic lumbar strain." The examiner did not have access to the C-file and noted that it was unclear for what back condition the Veteran was service-connected; therefore, he only completed the examination based on the condition of chronic lumbar strain, not degenerative disc/joint disease. (See Virtual VA, "CAPRI," received February 5, 2014.) During a VA examination conducted on August 21, 2015, examination results indicated a diagnosis of left lower extremity radiculopathy. The examiner noted that the Veteran had an EMG done in 2012 for weakness in the left leg but did not note the results of it. The 2012 EMG report, however, did note that the Veteran's reported sensitivity, numbness, pain in the Veteran's left quadriceps on prolonged walking and standing. During the August 2015 examination, the Veteran did not report pain in his quadriceps for the examiner. (See Virtual VA, "C&P Examination," received September 1, 2015.) A VA examination was conducted in December 2016. The examiner reported that the Veteran's most recent EMG on January 24, 2014, showed an abnormal electrodiagnostic study consistent with peripheral neuropathy mixed type with axonal degeneration and demyelination. The examiner noted an EMG from 2013 showing that nerve conduction and EMG studies revealed chronic axonal sensory motor polyneuropathy. The examiner stated that there was no clear evidence of lumbar radiculopathy. The examiner noted that the EMG done at VA on October 21, 2009, showed no electromyography evidence of left lumbosacral radiculopathy. The examiner stated that there was EMG evidence of neuropathic patterns all levels suspecting peripheral neuropathy of the lower extremity. The examiner stated that an EMG done on November 5, 2002 showed no evidence of right lumbar radiculopathy; however, there is minimal potential neuropathic process. (See Virtual VA, "C&P Examination," received December 27, 2016) The examiner reported that peripheral neuropathy is clearly shown on EMG in 2014 by Dr. Shin, in 2013 by Dr. Saperstein and in October 2009 by Dr. Kahn. The examiner said that the most recent three EMG exams do not note any evidence of radiculopathy; however, a purely sensory radiculopathy would not be demonstrated on EMG. The examiner noted that in the Veteran's examinations in 2013, the Veteran had a burning sensation in his quadriceps muscles which the Veteran did not complain of a burning sensation during the December 2016 examination. The examiner opined that it is at least as likely as not that some component of the Veteran's radicular symptoms may be contributing to the Veteran's distal lower extremity dysesthesias. The examiner said that how much of this is secondary to radiculopathy versus peripheral neuropathy is unknown as both processes are occurring. In conclusion, the examiner reported that in this case it is difficult to differentiate between the obvious chronic polyneuropathy and potential chronic bilateral L5-S1 radiculopathy. The examiner said that the evidence of active denervation in the left paraspinal serves to evidence the presence of an active radiculopathy. The examiner recommended consideration of both clinical entities as differentials. The examiner stated that broad distribution of the Veteran's polyneuropathy also obscures identification of specific nerve roots. The examiner added that correlation with imaging would serve to sharpen the diagnosis and that diabetic peripheral neuropathy would not be aggravated by lumbar radiculopathy. (Id.) On January 12, 2017, the examiner issued an addendum opinion after reviewing an EMG from February 2010. The examiner reiterated that the Veteran's lower extremity dysesthesias are likely secondary to a combination of both peripheral neuropathy and lumbar radiculopathy. The examiner stated that how much of these symptoms are secondary to radiculopathy versus peripheral neuropathy is unknown as both processes are occurring in the same Veteran. In this case, the Veteran has conflicting reports as to the diagnosis of his disability, has conflicting opinions as to the etiology of his disability, and has conflicting diagnostic test results regarding his disability. As there is otherwise insufficient medical evidence to decide the claim, the Board must remand the issue so that a medical opinion addressing the diagnosis and etiology of the Veteran's peripheral neuropathy, to include whether it is due to the Veteran's other service connected disabilities, can be obtained. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding evidence pertinent to the Veteran's claim. 2. The Veteran should be scheduled for a VA examination with a certified neurologist. The Veteran's claims file, and a copy of this Remand should be made available to the examiner and reviewed before the examination, including the factual background laid out on pages 3 through 8 of this remand. The examiner should conduct any necessary diagnostic testing, including an EMG and/or an MRI, at his or her own discretion. Although an independent review of the claims file is required, the Board calls the examiner's attention to the Veteran's numerous EMG studies and results, which indicate various diagnoses at different times. Furthermore, the Board calls the examiner's attention to the fact that the Veteran is service connected for the following disabilities: * Depressive disorder * Degenerative arthritis of the right knee and total knee arthroplasty * Traumatic arthritis of the left knee and total knee arthroplasty * Deep venous thrombosis of the right lower extremity * Degenerative joint and disc disease of the lumbosacral spine * Tinnitus * Status post fracture of the right ankle * Radiculopathy of the left lower extremity * Radiculopathy of the right lower extremity * Bilateral hearing loss * The Veteran is not service connected for diabetes a.) The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy is related to his active service from May 1972 to November 1979? Please provide a rationale for the opinion. b.) If the answer to "a.)" is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy is caused by one or more of the Veteran's service-connected disabilities (listed above)? Please provide a rationale for the opinion. c.) If the answer to "b.)" is negative, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's peripheral neuropathy is aggravated by one or more of the Veteran's service-connected disabilities (listed above)? Please provide a rationale for the opinion. The examiner should provide a rationale that compares the findings of the private medical records and previous VA examination reports to the examiner's findings. 3. Then, the AOJ should readjudicate the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. 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. §§ 5109B, 7112 (2012). _________________________________________________ A. P. SIMPSON 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 the Veteran's appeal. 38 C.F.R. § 20.1100(b) (2017).