Citation Nr: 20008361 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 05-19 207 DATE: January 31, 2020 ORDER Entitlement to service connection for a bilateral neurological disorder of the lower extremities, to include right lateral cutaneous nerve injury and bilateral sensory motor, axonal, and demyelinating peripheral neuropathy, as secondary to service-connected right hip and bilateral knee disabilities and left plantar fasciitis is granted. REMANDED Entitlement to initial increased ratings for a left knee disability – currently rated as 10 percent disabling from October 18, 2000, to March 20, 2012, and from June 1, 2012, to February 28, 2017; and 30 percent disabling from May 1, 2018 – is remanded. Entitlement to increased ratings for a right knee disability – currently rated as zero percent disabling prior to February 4, 2005; 10 percent disabling from February 4, 2005, to April 30, 2019; and 30 percent disabling from July 1, 2020 – is remanded. Entitlement to an increased rating for the right hip disability based on limitation of extension, currently rated as 10 percent disabling, is remanded. Entitlement to a compensable rating for right hip disability based on limitation of flexion, to include whether a separate rating is warranted for right hip limitation of flexion prior to September 25, 2014, is remanded. Entitlement to an initial compensable rating for a right hip scar is remanded. Entitlement to an effective date earlier than October 31, 2014, for grant of service connection for right hip scar is remanded. Entitlement to an initial compensable rating for a left hip disability is remanded. Entitlement to an effective date earlier than October 31, 2014, for grant of service connection for left hip disability is remanded. Entitlement to an initial rating in excess of 10 percent for right plantar fasciitis with calcaneal spur formation is remanded. Entitlement to an effective date earlier than October 31, 2014, for grant of service connection for right plantar fasciitis with calcaneal spur formation is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REFERRED The issue of entitlement to an increased rating for left plantar fasciitis was raised in a January 2018 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The weight of evidence shows that the right lateral cutaneous nerve injury was caused by the service-connected right hip disability. 2. The evidence is in equipoise as whether the bilateral sensory motor, axonal, and demyelinating peripheral neuropathy was caused by the service-connected bilateral knee disabilities and left plantar fasciitis. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for a bilateral neurological disorder of the lower extremities, to include right lateral cutaneous nerve injury and bilateral sensory motor, axonal, and demyelinating peripheral neuropathy, as secondary to the service-connected right hip and bilateral knee disabilities and left plantar fasciitis have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1978 to June 1983. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2004 (assigning an initial 10 percent disability rating for the left knee disability), July 2005 (assigning a 10 percent disability rating for the right knee disability), May 2009 (denial of service connection for peripheral neuropathy of the lower extremities), October 2014 (grant of service connection for limitation of flexion of the right hip and denial of an increased rating for limitation of extension of the right hip), and May 2015 (grants of service connection for right plantar fasciitis, right hip scar, and a left hip disability) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2008, the Board denied the claims for entitlement to increased ratings for right and left knee disabilities. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2009 Joint Motion for Partial Remand, the Court vacated the Board’s May 2008 decision and remanded the case for compliance with the terms of the joint motion. In September 2009, the Board remanded the claims for additional development. In a February 2013 decision, the Board awarded a 10 percent rating for the service-connected right knee disability throughout the appeal period. The Board, however, did not state when the appeal period began. The Board also denied the assignment of a separate rating for the right knee disability for instability or subluxation. The claim for entitlement to an increased rating for the left knee condition was remanded for further development. In a separate decision also issued in February 2013, the Board denied the claim for entitlement to service connection for peripheral neuropathy of the lower extremities. The Veteran appealed the denial of the service connection claim as well as the denial of a separate compensable rating for the right knee disability to the Court. In a July 2014 memorandum decision, the Court vacated the February 2013 Board decisions as they pertained to the claims for increased ratings of the right knee and service connection for peripheral neuropathy of the lower extremities. The Court ordered the Board to reverse the erroneous finding that a separate rating under Diagnostic Code 5257 for the right knee disability was not warranted because a rating under that diagnostic code had already been granted in the July 2005 rating decision. The Court also ordered the Board to “address whether the [Veteran’s] ratings should be increased, particularly in light of the Board’s favorable finding that ‘the [v]eteran’s right knee was 20[%} disabling throughout the entire period on appeal’ – a determination that was not reflected in the orders set forth by the decision.” July 2014 memorandum decision, page 3. In December 2016, the Board remanded the issues of increased ratings for the bilateral knee disabilities and service connection for peripheral neuropathy of the lower extremities for further development. The Board listed the right knee issue as “[e]ntitlement to a rating in excess of 10 percent for status post right knee arthroscopy surgery, to include separate compensable ratings for instability and limitation of motion.” December 2016 Board remand, page 1. A review of the electronic claims file shows that on June 28, 2005, the RO received the Veteran’s claim for an increased rating for the right knee disability. In the July 2005 rating decision, the RO assigned a 10 percent disability rating for the right knee disability effective February 4, 2005, the date of a VA examination, under Diagnostic code 5257 for instability. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Pursuant to the Court’s July 2014 memorandum decision and its holding in Hart, the issue involving the right knee disability includes whether a compensable rating prior to February 4, 2005, is warranted. Thus, the issue involving the right knee is as stated on the first page of this decision. In a June 2017 rating decision, the RO assigned a 100 percent disability rating for the left knee disability effective from March 1, 2017, to April 30, 2018, and a 30 percent disability rating effective May 1, 2018. In a May 2019 rating decision, the RO assigned a 100 percent disability rating for the right knee disability effective May 1, 2019, and a 30 percent disability rating effective July 1, 2020. As the post-operative ratings for the bilateral knee disabilities are not the maximum rating available for these disabilities, the claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In a November 2017 supplemental statement of case, the RO listed one of the issues on appeal as entitlement to an increased rating for right lumbar radiculopathy. In the October 2014 rating decision, the RO granted service connection for right lumbar radiculopathy effective April 2, 2102, and assigned a 20 percent disability rating effective that same date. The Veteran did not appeal the initial assignment of a 20 percent disability rating. In a May 2019 rating decision, the RO denied an increased rating for right lumbar radiculopathy pursuant to a January 2018 claim. Though the Veteran’s counsel presented argument on the issue of an increased rating for right lumbar radiculopathy in a December 2019 statement, that issue is not in appellate status because there is not a timely notice of disagreement regarding any rating decision involving that service-connected disability. A September 25, 2014, report of general information shows that the Veteran discussed with the RO an upcoming review examination for his right hip disability. In the October 2014 rating decision, the RO granted service connection for limitation of flexion of the right hip effective October 7, 2014, the date of a VA examination, and assigned a zero percent disability rating effective that same date. In October 2015, the counsel filed a timely notice of disagreement with the effective date of the grant of service connection for limitation of flexion of the right hip and the assignment of a zero percent disability rating. In an April 2019 rating decision, the RO assigned an effective date of September 25, 2014, for the grant of service connection for limitation of flexion of the right hip, based on its interpretation that the September 25, 2014, report of general information is the date of claim. In April 2019, the RO also issued a statement of the case addressing the issue of a compensable rating for right hip limitation of flexion, and in June 2019 the counsel filed a timely VA Form 9 on the issue of a compensable rating for that right hip disability. The Board finds that the October 2014 rating decision involves an assignment of a separate rating for the already-service-connected right hip disability based on limitation of flexion rather than a grant of service connection for a new and separate right hip disability. As such, the matter of whether a separate rating based on limitation of flexion prior to September 25, 2014, is part of the increased rating issue that has been perfected for appeal. Since the Veteran expressed disagreement with the assignment of an initial 10 percent disability rating for the left knee disability, he has had periods of unemployment. In an April 2008 statement, the Veteran reported that he was not seeking entitlement to TDIU. In an August 2009 statement, the Veteran’s counsel stated that the evidence regarding the knees supports entitlement to TDIU. Since entitlement to TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, it is part of the initial adjudication of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Since March 21, 2012, the Veteran’s service-connected disabilities have been intermittently rated 100 percent disabling for four different time periods and special monthly compensation based on housebound status has been awarded for four different time periods. The Board is cognizant of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation based on housebound status. As such, only the issue of entitlement to TDIU for the periods in which the Veteran was not receiving special monthly compensation based on housebound status is part of the current appeal. In a November 19, 2019, letter, the Board granted a 60-day extension from the date of that letter for the Veteran and his counsel to submit additional evidence. That 60-day period has expired, and in December 2019 the counsel presented additional argument. The Veteran’s counsel is his representative for all issues before the Board. 1. Entitlement to service connection for a bilateral neurological disorder of the lower extremities, to include bilateral sensory, motor, axonal, and demyelinating peripheral neuropathy and a right lateral cutaneous nerve injury Governing law and regulations A disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Analysis As for current disability, the Veteran filed a claim of entitlement to service connection for peripheral neuropathy of the lower extremities in April 2008. An April 2009 VA examination report reveals a diagnosis of sensory peripheral neuropathy in the lower extremities. A January 2010 VA examination report reflects that the examiner noted that there was no evidence of radiculopathy or neuropathy in the electrodiagnostic tests. An October 2014 VA examination report reflects a diagnosis of clinical evidence of right lateral cutaneous nerve injury. In a January 2015 statement, a private doctor noted a diagnosis of peripheral neuropathy of the lower extremities. An April 2017 VA examination report shows diagnoses of clinical right lumbar radiculopathy and bilateral mild sensory motor, axonal, and demyelinating peripheral neuropathy by electromyography. A July 2019 VA examiner noted that the Veteran had decreased sensation to pinprick and absent soft touch at the right lateral cutaneous nerve dermatome. Service connection is in effect for right lumbar radiculopathy. The weight of evidence shows that the Veteran has another neurological disorder in the lower extremity in addition to right lumbar radiculopathy. Therefore, Wallin element (1), current disability, is established. Service connection is in effect for a lumbar spine disability, bilateral hip and knee disabilities, and bilateral plantar fasciitis. Thus, Wallin element (2), service-connected disability, is shown. As for medical nexus, the October 2014 VA examiner stated that the right lateral cutaneous injury is a complication of the management of the service-connected right hip disability. The examiner noted that a lateral cutaneous nerve injury is common during hip surgery for heterotopic bone removal because of the necessary lateral retraction to perform the surgery. The examiner indicated that this type of traction injury is usually a neuropraxia with a combination of axonotmesis that can improve gradually after several months or years after surgery. The examiner stated that the nerve injury is currently symptomatic. There is no contrary opinion showing that the right lateral cutaneous nerve injury was not caused by the service-connected right hip disability. With regard to the sensory motor, axonal, and demyelinating peripheral neuropathy, there is conflicting medical evidence. In a January 2015 statement, a private doctor noted that she had reviewed the Veteran’s treatment records. The physician indicated that the Veteran had been treated with a local steroid injection for his left plantar fasciitis and a brace for his knees. She opined that the peripheral neuropathy is more likely than not related to the service-connected bilateral knee disabilities and left plantar fasciitis. The doctor noted the history of traumas to the lower extremities, a history of multiple steroid injections, and a history of wearing knee braces. The physician indicated that all of these factors can contribute to the development of a chronic peripheral neuropathy. She added that there was no other metabolic, medical, or inherited etiology for his peripheral neuropathy. The April 2017 VA examiner opined that it is less likely than not that the peripheral neuropathy is due to the service-connected disabilities. The examiner stated that there is no evidence in the medical literature that links sensory motor, axonal, and demyelinating peripheral neuropathy with his service-connected disabilities. The examiner indicated that the peripheral neuropathy and service-connected disabilities are different disease entities with different pathophysiological processes unrelated to each other. Both doctors provided bases for their opinions. Given the conflicting medical evidence, the evidence is in equipoise as whether the bilateral sensory motor, axonal, and demyelinating peripheral neuropathy was caused by the service-connected bilateral knee disabilities and left plantar fasciitis. Therefore, Wallin element (3), medical nexus, is established and service connection for bilateral neurological disorder of the lower extremities, to include right lateral cutaneous nerve injury and bilateral sensory motor, axonal, and demyelinating peripheral neuropathy, by means of causation is in order. 38 U.S.C. §§ 1131, 5107. In light of the grant of service connection, the Board does not have to address whether the bilateral neurological disorder was caused or aggravated by the lumbar spine disability. REASONS FOR REMAND The RO last issued a supplemental statement of the case in November 2017 on the issues of increased ratings for the bilateral knee disabilities. The Veteran underwent another VA examination for his knees in July 2019. The RO has not issued a supplemental statement of the case addressing this new evidence. An October 2014 VA examination report shows that passive range of motion testing was not done for the hips. An April 2017 VA examination report reveals that the examiner noted there was no pain on passive range-of-motion testing in the knees. The examiner did not report the actual passive range of motion. Similarly, the July 2019 VA examinations reports reflect there was evidence of pain on passive range-of-motion testing in both knees and hips. The examiner also did not report the actual passive range of motion for the knees and hips. In an April 2019 VA Form 9, the counsel argued that the examination reports should contain range of motion measurements for passive range of motion. A new VA examination is necessary for a measurement of passive range of motion. The examination should be conducted after June 30, 2020, when the right knee disability will no longer be rated 100 percent disabling. In a June 2005 statement, the Veteran reported treatment at the San Juan VA Medical Center. A June 2005 VA treatment record does not indicate that he was a new patient. The RO should obtain all treatment records from the San Juan VA Medical Center for the periods from October 2000 to May 2005, December 2007 to February 2009, and from July 2019 to the present. In the May 2015 rating decision, the RO granted service connection for right plantar fasciitis with calcaneal spur formation effective October 31, 2014, and assigned a 30 percent disability rating effective that same date. The RO also granted service connection for right hip scar effective October 31, 2014, and assigned a zero percent disability rating effective that same date. Moreover, the RO granted service connection for a left hip disability effective October 31, 2014, and assigned a zero percent disability rating effective that same date. In May 2016, the counsel filed a timely notice of disagreement with the assignment of the 30 percent and zero percent disability ratings for these three disabilities and the effective date of the grant of service connection for these three disabilities. A statement of the case has not yet been issued. A remand is required for the RO to issue a statement of the case. 38 C.F.R. § 20.200 (2018); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). VA may assign TDIU based on a veteran’s temporary (i.e., not-permanent) inability to follow a substantially gainful occupation. VAOPGPREC 5-2005 (Nov. 25, 2005). The RO should ask him to provide employment and income information from 2000 to the present. The RO has not provided the Veteran a formal application for his claim of entitlement to TDIU. The RO has also not provided him notice of the information and evidence needed to substantiate and complete this claim, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C. §§ 5103, 5103A (2012). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all treatment for his hip and knee disabilities and obtain any identified records. Obtain the Veteran’s VA treatment records from the San Juan VA Medical Center for the periods from October 2000 to May 2005, December 2007 to February 2009, and from July 2019 to the present. 2. The RO should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim for TDIU, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. 3. The AOJ must provide the Veteran a formal application for his claim of entitlement to TDIU. 4. Ask the Veteran to provide income and employment information from 2000 to the present. 5. Obtain VA Form 21-4192 (request for employment information in connection with claim) from all employers from 2000 to the present. 6. After the development in 1 through 5 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hip and knee disabilities to be conducted after June 30, 2020. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Active and passive range of motion measurements must be reported for both knees and hips. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 7. After the development in 1 through 6 is completed, the RO should undertake any necessary development on the TDIU claim as warranted by any additional evidence of record. 8. Send the Veteran a statement of the case that addresses the issues of entitlement to an initial rating in excess of 30 percent for right plantar fasciitis with calcaneal spur formation, initial compensable disability ratings for a right hip scar and a left hip disability, and an effective date earlier than October 31, 2014, for the grant of service connection for right plantar fasciitis, a right hip scar, and a left hip disability. If the Veteran perfects an appeal by submitting a timely VA Form 9 on an issue, that issue should be returned to the Board for further appellate consideration. 9. After development above has been completed, the RO should readjudicate the Veteran’s claims with consideration of all evidence of record. The RO should adjudicate the claim of TDIU after all ratings and effective dates have been assigned for the bilateral neurological disorder of the lower extremities and with consideration of whether the Veteran had marginal employment and temporary (i.e., not-permanent) inability to follow a substantially gainful occupation during the time period from 2000 to the present. The RO should also consider whether separate ratings are warranted for the right knee disability prior to May 1, 2019, based on limitation of motion and instability and whether separate ratings are warranted for the left knee disability prior to March 1, 2017, based on limitation of motion and instability. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his counsel, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.