Citation Nr: 1806908 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-11 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a neurological disorder of the lower extremities, to include as secondary to service-connected residuals of a low back injury with degenerative changes. 2. Entitlement to an initial evaluation in excess of 10 percent for right Achilles tendonitis. 3. Entitlement to an initial evaluation in excess of 10 percent for left Achilles tendonitis. REPRESENTATION Veteran represented by: Katie L. Ambler, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In that decision, the RO, in relevant part, granted service connection for right and left Achilles tendonitis and assigned separate 10 percent evaluations effective from February 16, 2011. The RO also denied service connection for bilateral lateral cutaneous nerve of the thigh neuropathy (meralgia paresthetica) (claimed as radicular nerve pain). The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2017. A transcript of that proceeding is associated with the record. The record was also held open for 60 days in order to allow the Veteran and her representative additional time to submit medical records. Thereafter, the Veteran's attorney submitted additional evidence. The Board notes that an issue on appeal was characterized by the RO as entitlement to service connection for bilateral lateral cutaneous nerve of the thigh neuropathy (meralgia paresthetica). However, in light of the Veteran's assertions and the evidence of record, the Board has recharacterized the issue more broadly to include any neurological disorder of the lower extremities. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Board also notes that the Veteran's appeal originally included the issue of entitlement to service connection for bilateral hearing loss and tinnitus. However, in a January 2014 rating decision, the RO granted service connection for right ear hearing loss and tinnitus. The AOJ's grant of service connection for these issues constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Therefore, those issues are no longer on appeal, and no further consideration is necessary. With respect to the claim for service connection for left ear hearing loss, the Veteran did not perfect her appeal following the issuance of the January 2014 statement of the case. Rather, she specifically limited her appeal to the issues listed on the title page in her March 2014 substantive appeal. Therefore, that issue is also not on appeal. The Board also notes that the Veteran's claim for a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) was separately adjudicated. In a June 2015 rating decision, the RO denied entitlement to TDIU, and the Veteran has not expressed disagreement with that decision. Although a claim for TDIU is considered part of an increased rating claim when such claim is raised by the record, a claim for TDIU may also be pursued as a separate claim, as in this case. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, given the specific procedural background in this case, a claim for TDIU is not deemed to be a component of the current appeal This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Board notes that additional evidence has been associated with the claims file since the January 2014 statement of the case. However, as discussed below, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review these records on remand. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran has contended that she has a neurological disorder of the lower extremities that had its onset during service. Specifically, she has reported having radicular pain and numbness in her thighs and feet. See, e.g., February 2011 claim. Alternatively, she has contended that she has a neurological disorder that is secondary to her service-connected residuals of a low back injury with degenerative changes. In a March 1992 VA examination, the examiner stated that there was clinical evidence of nerve root irritation possibly involving the fifth lumbar nerve root bilaterally. The examiner also stated that a neurosurgical consultation, electromyography, and nerve conduction studies were needed to address the Veteran's symptoms in her left and right lower extremities. However, there is no indication that any such testing was conducted at that time. In a November 2011 VA examination, the examiner diagnosed the Veteran with bilateral lateral cutaneous nerve of the thigh neuropathy (meralgia paresthetica) and subjective radiculopathy without objective findings. The examiner opined that the claimed injury was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner's supporting rationale relied largely on the lack of documentation of maralgia paresthetica during the Veteran's service. In addition, he did not address the Veteran's service treatment records that noted complaints of lower extremity pain, numbness, and parasthesias. Moreover, although the examiner indicated that the date of diagnosis for the Veteran's meralgia paresthetica was approximately 20 years earlier, he did not address whether the disorder had its onset during service. In a May 2015 VA examination, the examiner diagnosed the Veteran with bilateral meralgia paresthetica and identified the date of diagnosis as 2011. In so doing, the examiner stated that the decreased sensation in the Veteran's bilateral anterolateral thighs was consistent with meralgia paresthetica and that the condition was not a lumbar radiculopathy. She also stated that the bilateral decreased sensation in the Veteran's toes did not constitute a lumbar radiculopathy. The May 2015 examiner opined that it was less likely than not that the Veteran's meralgia paresthetica was part or parcel of her service-connected back disability. In so doing, the examiner stated that meralgia paresthetica results from peripheral nerve impingement and has specific characteristic symptoms that were not synonymous with the symptoms the Veteran reported during service. However, the examiner did not provide any rationale for her determination and did not address the Veteran's lay statements regarding the ongoing nature of her symptoms in her bilateral anterolateral thighs. In addition, she did not address whether the Veteran's service-connected back disability aggravated her meralgia paresthetica. Moreover, the examiner did not adequately address whether the Veteran's bilateral foot neuropathy was directly related to her service. In support of her claim, the Veteran submitted an August 2017 private medical record that listed thoracic or lumbosacral neuritis or radiculitis on a problem list. She also submitted a March 2013 private medical record from Dr. A.B. (initials used to protect privacy) that noted an assessment of back pain with radiation pain and a rule out diagnosis of radicular pain. Dr. A.B. noted that potential causes of the Veteran's radicular symptoms were discussed. However, no opinion or additional information was provided in the record. In light of the foregoing, the Board finds that a remand is necessary to obtain a VA examination and medical opinion to clarify the nature and etiology of the Veteran's neurological disorder of the lower extremities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Regarding the issues of entitlement to increased evaluations for right and left Achilles tendonitis, the Veteran was afforded a VA examination in November 2011. Subsequently, she was afforded a VA ankle examination in connection with her claim for TDIU in June 2015. The Veteran's right and left Achilles tendonitis is currently evaluated under Diagnostic Code 5271 (for ankle limitation of motion). In light of a recent decision issued by the United States Court of Appeals for Veterans Claims (Court), Correia v. McDonald, 28 Vet. App. 158 (2016), a remand is required. In Correia, the Court concluded that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. In this case, the November 2011 and June 2015 VA examinations did not include range of motion testing on passive motion and in nonweight-bearing positions. Therefore, a remand is required to afford the Veteran an additional VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In addition, the June 2015 VA examiner attributed the Veteran's ankle pain to her rheumatoid arthritis. However, the examiner's determination was based solely on the lack of documented treatment for Achilles tendonitis. The Veteran's attorney has also asserted that her service-connected Achilles tendonitis affects her joints, muscle, and tendons. See, e.g., November 2017 correspondence. Therefore, a remand is also necessary to clarify the pathology and symptomatology attributable to the Veteran's service-connected right and left Achilles tendonitis. Furthermore, during the August 2017 hearing, the Veteran reported that she received ongoing private medical treatment for the disorders on appeal. In November 2017, the Veteran's attorney submitted additional private treatment records; however, the records are limited and do not pertain to the Veteran's Achilles tendon disorders. Therefore, on remand, the AOJ should attempt to obtain any outstanding private treatment records. The Board also notes that the most recent VA medical records currently associated with the claims file are dated in December 2009. In addition, a November 2009 VA medical record noted that the Veteran received treatment at the Columbia VA Medical Center (VAMC) a few years after her separation from service. The Veteran's attorney also reported that she received treatment at the Iowa City VAMC. See April 2011 correspondence. However, these records are not associated with the claims file. Therefore, the AOJ should obtain any outstanding VA medical records. In addition, the Veteran's attorney submitted September 1991 Medical Evaluation Board and December 1991 Physical Evaluation Board reports. However, it is unclear whether all records related to those proceedings have been associated with the claims file. The Veteran's service treatment records also show that she received treatment during service for a back disorder and neurological symptoms at the Walter Reed Army Medical Center. See, e.g., May 1991 Physician's Discharge Note; June 1991 inpatient treatment record cover sheet. Therefore, the AOJ should attempt to obtain any inpatient or clinical records that may be available. Lastly, the Board notes that additional evidence has been associated with the claims file since the July 2014 statement of the case, including VA examination reports and Social Security Administration (SSA) records. Although the Veteran's substantive appeal was filed after February 2, 2013, these records were obtained by VA rather than the Veteran. Therefore, there is no automatic waiver of AOJ review. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disorders on appeal that are not already of record. A specific request should be made for authorization to obtain records from Dr. D.O. (initials used to protect privacy) and the Quincy Clinic identified during the August 2017 Board hearing. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records, to include any records from the Columbia, Missouri, VAMC dated from January 1992 to the present; the Iowa City VAMC; and any other records dated from December 2009 to the present. 2. The AOJ ensure that the Veteran's complete service treatment records and service personnel records have been associated with the claims file, to include any records pertaining to Medical Evaluation Board and Physical Evaluation Board proceedings. 3. The AOJ should contact the appropriate facilities to request any inpatient or clinical records from the Walter Reed Army Medical Center dated from April 1991 to June 1991 that pertain to treatment for back or lower extremity disorders. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any neurological disorders of the lower extremities that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should identify all neurological disorders of the lower extremities. He or she should also address any other prior diagnoses of record, such as meralgia paresthetica, neuropathy, and lumbosacral neuritis or radiculitis. If any previously diagnosed disorder is not found on examination, the examiner should address whether it was misdiagnosed or has resolved. For each diagnosis identified, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran's military service, to include any injuries or symptomatology therein. The examiner should also provide an opinion as to whether it is at least as likely as not that the disorder was either caused by or aggravated by the Veteran's service-connected residuals of a low back injury with degenerative changes. In rendering his or her opinion, the examiner should consider the following: 1) the Veteran's lay statements regarding her symptoms of pain and numbness in her lower extremities (see, e.g., February 2011 claim; August 2017 Board hearing transcript); 2) the service treatment records that note complaints of pain and numbness in the lower extremities (see, e.g., January 1991, February 1991, and October 1991 service treatment records); 3) the December 2011 private medical record that noted sciatica in a review of systems; 4) the March 2013 private medical record that noted an assessment of back pain with radiation and a rule out diagnosis of radicular pain; 5) the August 2017 private medical record that noted thoracic or lumbosacral neuritis or radiculitis; and 6) the VA examination findings and opinions of record, including the November 2011 VA peripheral nerve examination and the March 1992, April 1994, May 1995, and May 2015 VA spine examinations. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of her service-connected right and left Achilles tendonitis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should clearly delineate all pathology and symptomatology attributable to the service-connected right and left Achilles tendonitis, to include any impairment of muscle and nerve function. He or she should also specifically address whether there is any impairment to the tibia and fibula, including malunion or nonunion, attributable to her service-connected Achilles tendonitis. If the examiner is unable to distinguish between the symptoms associated with the service-connected right and left Achilles tendonitis and any symptoms associated with another service-connected disability or a nonservice-connected disorder, he or she should so state in the report. The examiner should report all signs and symptoms necessary for rating the disabilities. In particular, the examiner should provide the range of motion in degrees for both ankles and test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 6. The AOJ should review the examination reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 7. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the claims should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran 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). _________________________________________________ J.W. ZISSIMOS 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).