Citation Nr: 20028085 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 14-15 730 DATE: April 22, 2020 REMANDED Entitlement to an extension of a temporary total evaluation beyond September 30, 2012, based on the need for convalescence following a March 1, 2012 right foot surgery is remanded. Service connection for right lower extremity (RLE) peripheral neuropathy to include as secondary to service-connected right hammertoe disability is remanded. Service connection for left lower extremity (LLE) peripheral neuropathy to include as secondary to service-connected left hammertoe disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to September 1970 in the United States Army and from November 1971 to July1973 in the United States Navy. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The September 2012 rating decision granted a temporary total evaluation for service-connected post-operative hammertoes, right foot, from March 1, 2012 to April 30, 2012. In a separate March 2014 rating decision, the RO granted another temporary total evaluation from May 31, 2013 to June 30, 2013 based on the need for convalescence following another right foot surgery in May 2013. The Veteran did not specifically lodge disagreement with the time periods assigned regarding the convalescent period following the second right foot surgery, and such matter is not currently within the Board’s jurisdiction. In October 2015, the Board extended the temporary total evaluation following the first right foot surgery from April 30, 2012 to September 30, 2012. It then remanded the issue for review by the Veterans Service Center Manager for consideration of an additional extension of convalescence regarding the first surgery for the time period beyond September 30, 2012. The Veterans Service Center Manager submitted a negative determination in October 2016. Thereafter, in January 2017, the RO granted another temporary total evaluation from July 15, 2016 to September 30, 2016. The Veteran did not specifically lodge disagreement with the time periods assigned regarding the convalescent period following the third right foot surgery, and such matter is not currently within the Board’s jurisdiction. In June 2019, the United States Court of Appeals for Veterans Claims (Court) remanded the issue of entitlement to an extension of a temporary total evaluation beyond September 30. 2012, based on the need for convalescence following a March 1, 2012 right foot surgery to the Board for readjudication. 1. Entitlement to an extension of a temporary total evaluation beyond September 30, 2012, based on the need for convalescence following a March 1, 2012 right foot surgery, is remanded. The record shows that the Veteran underwent two surgeries to correct the hallux extensus deformity of the right hallux and ostectomy plantar aspect IPJ right hallux in March 2012. He underwent a fusion of the IPJ right hallux with fixation in May 2013. The record shows that the operation was without complication and the Veteran tolerated the procedure well. The recovery was uneventful. An August 2012 VA examination established that all five of the Veteran’s toes on both feet were hammertoes. The examiner noted that the foot disability did not affect the ability to work. At the exam it was noted the required use of crutches and was “still convalescing” with additional surgery for the right foot in May 2013. The DRO found that the evidence of record reflects no continued problems or surgeries for the right foot hallux deformity until July 2016 at which time the internal fixation devices was removed. Treatment report from August 2016 reflects the surgery was successful with no problems, the continued use of surgical boot, with no specific period of convalescence noted. The Veteran contends that he should have received convalescence from March 2012 to the present as the first surgery did not correct the problem and he was still under a doctor’s care. See Form 9 (February 2014). The Board must determine whether the Veteran is entitled to an extension of a temporary total evaluation for the period from September 30, 2012 to May 31, 2013, based on the need for convalescence. The Board notes the Court in its Memorandum Decision found that the February 2018 Board decision (1) failed to provide reasons and bases for rejecting medical evidence of the Veteran’s continued need, beyond September 30, 2012, for convalescence from the March 1, 2012 right foot hammertoe surgery; (2) is wholly inconsistent with its October 20, 2015 finding that the need for the May 31, 2013 surgery, itself, evidenced the continued need for convalescence; (3) the violated the rule set forth in Colvin v. Derwinski, 1 Vet. App. 171, 175, by making negative factual findings unsupported by competent medical evidence; and (4) erred because no scheduler evaluation was assigned, or physical examination performed, prior to termination of the total rating, in violation of 38 C.F.R. § 4.30 language of its October 2015 decision where it noted ‘the fact that the Veteran required additional hammertoe correction surgery on his right foot in May 2013 is highly indicative that he had not recovered from the March 2012 surgery. CAVC Decision (June 2019) (Emphasis added). In view of the above, the Board finds an addendum medical opinion is required to provide a retrospective medical opinion in this regard to include a discussion of any right foot symptomatology that would indicate need for convalescence as per 38 C.F.R. § 4.30 beyond September 30, 2012. 2. Service connection for right lower extremity peripheral neuropathy to include as secondary to service-connected right hammertoe disability is remanded. 3. Service connection for left lower extremity peripheral neuropathy to include as secondary to service-connected left hammertoe disability is remanded. Issues: 2-3 The Veteran contends that his bilateral lower extremity peripheral neuropathy developed as secondary to his service-connected left and right foot hammertoe disability. See Notice of Disagreement (July 2018). He noted that he has felt numbness and tingling as a result of his service-connected hammertoe disability. The Veteran’s treating podiatrist (surgeon and VA Chief of Podiatry), Dr. CG, opined that “it is at least as likely as not that the neuropathy in this Veteran’s feet and toes was caused by surgery performed in 1972 on his feet.” See Medical Treatment Note-Governmental (June 2012). The Veteran’s bilateral peripheral lower extremity neuropathy was assessed during an April 2018 VA examination. (May 2018 C&P Exam). The examiner opined that the Veteran’s bilateral lower extremity radiculopathy was less likely than not etiologically related to service or proximately due to service-connected bilateral hammertoe disability. The examiner reviewed the Veteran’s medical records which indicated left foot drop following 1988 injury to his back. The examiner also pointed to the Veteran’s infectious disease, HIV, ‘indicates some small element of neuropathy due to HIV and drugs for its treatment.’ The examiner also noted a diagnosis of diabetes mellitus in 2000 with a diagnosis of bilateral peripheral neuropathy in 2002. The examiner concluded that the Veteran’s neuropathy is clearly related to diabetes mellitus and HIV drug therapy. She added that the Veteran’s neuropathy and radiculopathy are separate conditions and unrelated to his hammer toes symptoms or to symptoms to his hammer toes. When VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the May 2018 VA examiner did not provide adequate opinion as to whether the Veteran’s bilateral lower extremity peripheral neuropathy manifested as secondary to service-connected bilateral hammertoe disability. A medical opinion assessing secondary service connection must address both causation and aggravation. This means that the requested medical opinion must assess not only if the claimed disability was caused by the service-connected disability, but also if it was aggravated by that service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136 (2012). Therefore, the Board finds that an addendum opinion regarding the etiology of the Veteran’s bilateral lower extremity peripheral neuropathy is required. As such, the matter is remanded for addendum medical opinion. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms involving his right foot from March 1, 2012 to May 31, 2013. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 2. After the aforementioned development has been completed, obtain an addendum opinion from an appropriate clinician regarding the question of need for extended convalescence after September 30, 2012 based on the Veteran’s post-surgical symptomatology following his March 1, 2012 right foot surgery and additional surgery in May 2013. Based on a review of the medical record to include, but not limited to, the Veteran’s medical history and clinical findings for the period from March 1, 2012 to May 31, 2013, indicate specifically whether the Veteran’s March 2012 right foot surgery (service-connected right foot hammertoe disability) necessitated an extended period of convalescence after September 30, 2012 based on: (a.) incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); (b.) immobilization by cast, without surgery, of one major joint or more. Also, opine on whether the need for another right foot surgery in May 2013 reflects, at least as likely as not, that the Veteran had incompletely healed surgical wounds or needed house confinement at any time between September 30, 2012 and his May 2013 right foot surgery. Explain the basis for the conclusion reached discussing the relevant medical history and/or clinical findings (e.g. a November 2012 VA treatment note shows that the Veteran used a cane for ambulation when seen for his HIV follow up). 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral lower extremity peripheral neuropathy disability is at least as likely as not proximately due to service-connected bilateral hammertoe disability or aggravated beyond its natural progression by service-connected hammertoe disability. 4. Ensure that the VA medical opinions obtained includes a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. For the period from September 30, 2016 to May 31, 2013, per the Court’s June 2019 Memorandum Decision, ensure compliance 38 C.F.R. § 4.30 (“When the evidence is inadequate to assign a schedular evaluation, a physical examination will be scheduled and considered prior to the termination of a total rating.). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.