Citation Nr: 20003753 Decision Date: 01/16/20 Archive Date: 01/15/20 DOCKET NO. 16-45 089 DATE: January 16, 2020 REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected left knee and/or back disabilities, is remanded. Entitlement to service connection for restless leg syndrome, to include as secondary to service-connected left knee and/or back disabilities, is remanded. Entitlement to a rating in excess of 30 percent for left total knee replacement is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, he waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the August 2016 statement of the case. 38 C.F.R. § 20.1304(c). Additionally, the undersigned held the record open for 60 days for the submission of additional evidence, which was received in August 2019 and September 2019. 38 U.S.C. § 7105(e)(1). The Board observes that, during the July 2019 Board hearing, the Veteran testified that his service-connected left knee disability renders him unemployable. Consequently, the Board has assumed jurisdiction of a claim of entitlement to a TDIU as part and parcel of such increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected left knee and/or back disabilities. 2. Entitlement to service connection for restless leg syndrome, to include as secondary to service-connected left knee and/or back disabilities. The Veteran contends he has peripheral neuropathy of the bilateral lower extremities and restless leg syndrome as a result of his military service. Specifically, he indicates that such disorders began in service in approximately 1971 following a left knee operation. In the alternative, he alleges that such disorders were caused or aggravated by his service-connected left knee and/or back disabilities. In this regard, a January 2013 nerve conduction study/electromyography (NCS/EMG) revealed diffuse generalized peripheral polyneuropathy, acute and chronic right S1 radiculopathy, and possible superimposed left L5 radiculopathy. At an April 2013 VA examination, the examiner diagnosed peripheral neuropathy since 2006 and restless leg syndrome since 2011. However, he opined that the Veteran’s restless leg syndrome was not caused by or a result of his service-connected left knee or back disabilities. In support of such opinion, the examiner reported that there was no known association between restless leg syndrome and internal knee derangement. He further opined that there was likewise no known medical association between cervical/lumbar strain, or degenerative disc disease, and restless leg syndrome. In this regard, the examiner explained that most causes of restless leg syndrome were idiopathic (no known or found cause). Subsequently, the Veteran underwent a VA examination in November 2018. Following examination, the examiner indicated that the Veteran had radiculopathy of the bilateral lower extremities. In this regard, he found that such disorder was at least as likely as not proximately due to or the result of his advanced degenerative spine disease rather than his service-connected lumbar strain. As rationale for such opinion, the examiner reported that the Veteran’s sciatica/radiculopathy was most likely the result of sciatic nerve impingement by lower back spine degeneration and disc bulging, and lumbar strain alone did not cause nerve impingement. Thereafter, in August 2019, the Veteran submitted opinions from a private provider who opined that his peripheral neuropathy was caused or aggravated by diabetes mellitus, which is not service-connected, and his restless leg syndrome was caused or aggravated by his peripheral neuropathy; however, he did not provide a rationale for such opinion. However, none of the opinions offered addressed: (1) whether the Veteran’s restless leg syndrome was aggravated by his service-connected left knee and/or back disabilities; (2) whether his peripheral neuropathy was caused by his service-connected left knee disability; or (3) whether his peripheral neuropathy was aggravated by his service-connected left knee and/or back disabilities. Furthermore, despite the noted dates of onset by the April 2013 VA examiner, the Veteran has consistently received treatment for pain/twitching in his bilateral lower extremities since 1989, and testified that such symptoms began in service following a left knee operation and have continued to the present time at his July 2019 Board hearing. In this regard, the Veteran’s service treatment records reflect that he reported left knee trouble since 1968 and underwent removal of torn cartilage in his left knee in March 1970. However, neither the April 2013 nor November 2018 VA examiners offered an opinion as to whether the Veteran’s restless leg syndrome and peripheral neuropathy of the bilateral lower extremities are directly related to his military service, to include his left knee surgery. Thus, the Board finds that a remand is warranted to obtain an addendum opinion that addresses such matters. 3. Entitlement to a rating in excess of 30 percent for a left total knee replacement. During the course of the appeal, the Veteran was afforded VA examinations in April 2013 and November 2018 (in connection with his right knee disability), and submitted a private DBQ in August 2019. However, as such examinations do not fully comply with the United States Court of Appeals for Veterans Claims’ (Court’s) holdings in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), a remand is necessary in order to afford the Veteran a contemporaneous VA examination addressing the nature and severity of his left knee disability. 4. Entitlement to a TDIU. The Veteran contends that he is unable to work due to his service-connected left knee disability. Thus, the claim for a TDIU is inextricably intertwined with the increased rating claim remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran’s TDIU claim must be deferred pending the increased rating claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Additionally, on remand, he should be requested to complete and submit a Veteran’s Application for Increased Compensation for Unemployability (VA Form 21-8940), and the AOJ should thereafter conduct any necessary development in regard to such claim. The matters are REMANDED for the following action: 1. The Veteran should be requested to complete and submit a Veteran’s Application for Increased Compensation for Unemployability (VA Form 21-8940). Thereafter, the AOJ should conduct any necessary development in regard to the Veteran’s TDIU claim. 2. Forward the record to an appropriate medical professional so as to obtain an addendum opinion regarding the etiology of the Veteran’s restless leg syndrome and peripheral neuropathy of the bilateral lower extremities. The record and a copy of this remand must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s restless leg syndrome and/or peripheral neuropathy of the bilateral lower extremities had their onset in, or are otherwise related to, his military service? (B) Did restless leg syndrome and/or peripheral neuropathy of the bilateral lower extremities manifest within one year of the Veteran’s separation from service in March 1971? If so, please describe the manifestations. In offering the foregoing opinions, the examiner should consider the Veteran’s reports that he began experiencing symptoms of such disorders in service, to include as a result of his in-service left knee surgery, that have continued to the present time. (C) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s restless leg syndrome and/or peripheral neuropathy of the bilateral lower extremities are aggravated by his service-connected left knee and/or back disabilities? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. (D) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s peripheral neuropathy of the bilateral lower extremities is caused by his service-connected left knee disability? (E) Is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s restless leg syndrome is caused by his peripheral neuropathy of the bilateral lower extremities? For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale should be provided for any opinion offered. 3. Afford the Veteran an appropriate VA examination to determine the nature and severity of his left knee disability. The record, to include a complete copy of this remand, must be made available to the examiner, and all indicated tests and studies should be accomplished. The examiner should identify the current nature and severity of all manifestations of the Veteran’s left knee disability. In this regard, he or she is specifically requested to indicate whether the Veteran has chronic residuals of his total left knee replacement consisting of severe painful motion or weakness. The examiner should record the range of motion of the left knee observed on clinical evaluation in terms of degrees. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 why that is so. The examiner is requested to review the VA examinations containing range of motion findings pertinent to the Veteran’s left knee disability conducted in Apri 2013 and November 2018. In this regard, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. If the Veteran endorses experiencing flare-ups of his left knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner also should comment upon the functional impairment resulting from the Veteran’s left knee disability. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.