Citation Nr: 20038098 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 11-18 143 DATE: June 3, 2020 REMANDED Prior to September 22, 2017, entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower sciatic nerve is remanded. From September 22, 2017 to May 29, 2019, entitlement to a rating in excess of 40 percent for peripheral neuropathy of the left lower sciatic nerve, and in excess of 20 percent thereafter is remanded. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the anterior crural (femoral) nerve is remanded. REASONS FOR REMAND The Veteran served on active duty from March to July 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2016, the Veteran testified at a Travel Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, this matter was previously before the Board in June 2017 and May 2018. During the pendency of the appeal, a December 2017 rating decision granted service connection for peripheral neuropathy of the left lower external popliteal (common peroneal) nerve and assigned a 10 percent rating, effective October 19, 2004. See December 2017 Rating Decision – Narrative. Thereafter, a February 2020 rating decision changed the Veteran’s diagnostic code to correspond to the sciatic, rather than external popliteal (common peroneal), nerve and increased his disability rating. Specifically, the February 2020 rating decision assigned a 40 percent rating for peripheral neuropathy of the left lower sciatic nerve, effective September 22, 2017, and a 20 percent rating, effective May 29, 2019. The February 2020 rating decision also granted service connection for peripheral neuropathy of the anterior crural (femoral) nerve and assigned a 20 percent disability rating, effective September 22, 2017. See February 2020 Rating Decision – Narrative. 1. Prior to September 22, 2017, entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower sciatic nerve is remanded. 2. From September 22, 2017 to May 29, 2019, entitlement to a rating in excess of 40 percent for peripheral neuropathy of the left lower sciatic nerve, and in excess of 20 percent thereafter is remanded. 3. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the anterior crural (femoral) nerve is remanded. As an initial matter, the Veteran filed his claim for entitlement to an increased rating for a service-connected left femur disability on May 16, 2006. See May 2006 VA Form 21-4138 Statement in Support of Claim. The claim was denied in a September 2006 rating decision and the Veteran filed a timely notice of disagreement in January 2007. See September 2006 Rating Decision – Narrative; January 2007 VA Form 21-4138 Statement in Support of Claim. As noted above, the RO granted the Veteran’s claim for service connection for peripheral neuropathy of the left lower external popliteal nerve in a December 2017 rating decision and assigned a 10 percent rating, effective October 19, 2004, the date of an EMG showing that the Veteran had peroneal neuropathy, and an increased 20 percent disability rating, effective September 22, 2017, the date of a VA examination showing the current severity of the Veteran’s disability. See December 2017 Rating Decision – Narrative. In a subsequent February 2020 rating decision, the RO changed the diagnostic code for peripheral neuropathy of the left lower extremity to correspond to the sciatic, rather than external popliteal, nerve and assigned a higher disability rating. Specifically, the RO assigned a 40 percent rating, effective September 22, 2017, and a 20 percent rating, effective May 29, 2019, for peripheral neuropathy of the left lower sciatic nerve. The February 2020 rating decision also granted service connection for peripheral neuropathy of the left lower anterior crural (femoral) nerve and assigned a 20 percent disability rating, effective September 22, 2017, which corresponds to the date of a VA examination. See February 2020 Rating Decision – Narrative. A review of the service treatment records (STRs) reveals that the Veteran was diagnosed with a transverse comminuted subtrochanteric femur fracture, without major artery or nerve involvement, in April 1982, and underwent an open reduction and internal fixation with a Zickel intramedullary rod. See April 2015 STR – Medical. An October 1997 private treatment record from Dr. Larry B. Thead shows that the Veteran reported left hip discomfort and pain over his left foot with special reference to the dorsum of the foot. On examination, Dr. Thead noted tenderness over the dorsum of the Veteran’s left foot and achilles tendon. The impression was left foot pain and tendonitis. See April 2001 Medical Treatment Record – Non-Government Facility. A private treatment record from Dr. Richard A. Sanders, dated in October 2004, shows that the Veteran underwent an EMG for pain in his left hip and possible gluteus medicus tendinitis. The EMG study revealed neurogenic recruitment in the Veteran’s gluteus maximus without acute injury but with some nerve loss, decreased amplitude, and left peroneal neuropathy. In addition, Dr. Sanders stated that there could also be involvement of a lumbar neuropathy and opined that the Veteran had a significant lumbar problem, but that his chronic gluteal weakness would account for his symptoms and significant impairment. The impression was chronic gluteal weakness. See May 2006 Medical Treatment Record – Non-Government Facility. The Veteran underwent a VA joints examination in August 2006. During the examination, the Veteran reported daily pain in his left hip that radiated down his leg. He stated that the pain began when he woke up in the morning and was present all day, but subsided for a few hours after lunch, which he attributed to decreased activity. Neurological testing showed active movement against some resistance in the Veteran’s left lower extremity and a reflex examination showed that his lower left extremity was hypoactive. Following the examination, the examiner diagnosed the Veteran with post-open reduction internal fixation of left femoral fracture, early degenerative arthritis of L3 and L4, and muscular atrophy of the left lower extremity, as was evident from the decrease in circumference of the Veteran’s thigh and calf. He also diagnosed the Veteran with left peroneal nerve neuropathy based on the October 2004 EMG. See August 2006 VA examination. In August 2007, the Veteran reported chronic, sharp left hip pain that radiated down his left thigh. He stated that the pain was exacerbated by prolonged sitting and standing but reported relief with walking. He also reported numbness and tingling in his left foot. On examination, the examiner noted muscle tenderness in the Veteran’s left femur, leg, and foot. The Veteran’s Babinski reflex was absent and his bilateral deep tendon reflexes were diminished. The assessment was chronic left hip pain that radiated to left femur, secondary to chronic gluteal weakness of left hip from hip surgery to repair a 1981 fracture. The Veteran underwent an MRI in November 2007, which showed severe left foraminal narrowing at L5-S1 with left L5 root compression and bilateral adrenal nodular lesions. With respect to the latter finding, the examiner noted that in the absence of a known malignancy, the lesions were most likely non-functioning adenomas. Following the MRI, the examiner opined that the pain in the Veteran’s left hip was likely due to a radicular etiology. See February 2017 CAPRI. In April 2008, the Veteran endorsed left lower extremity pain, which began in his low back and posterior buttock and radiated down his posterior thigh to his toes. He also reported numbness throughout his leg and stated that he felt weakness in his dorsiflexion and plantar flexion. On physical examination, the examiner did not note any tenderness over the Veteran’s fracture line or at the distal aspect to where the intramedullary rod ended. The examiner found that the Veteran had full range of motion in his knee, ankle, and hip but noted that a positive straight leg raise caused shooting pains down the posterior aspect of the Veteran’s left leg to his toes. The impression was left leg sciatica. See February 2017 CAPRI. The Veteran also underwent a VA examination for joints in October 2008. During the examination, the Veteran reported daily pain in his left buttock behind his left hip. Following the examination, the examiner diagnosed the Veteran with referred pain to his left hip due to lumbar disc disease and found insufficient evidence of residuals from the Veteran’s old, well-healed proximal left femur fracture. The examiner opined that the Veteran’s left hip symptoms were caused by lumbar disc disease with referred pain in his left leg. See October 2008 VA examination. In August 2015, the Veteran was afforded a VA examination for scars and disfigurement. During the examination, the Veteran reported sensory loss and chronic numbness around the surgical scar from his supracondylar left femur fracture but denied pain in the scar itself. The examiner diagnosed the Veteran with mild, incomplete neuropathy of the lateral femoral cutaneous nerve and stated that the area of numbness extended a few inches out from either side of the vertical scar on the Veteran’s lateral left hip and thigh. Following the examination, the examiner opined that the Veteran had permanent, chronic residual sensory neuropathy of the lateral femoral cutaneous nerve due to transaction of his superficial nerves with the surgery to fix his supracondylar femur fracture. See July 2017 CAPRI. In support of his claim, the Veteran submitted a private medical opinion from Dr. John C. Simmons, dated in January 2016. Dr. Simmons noted that the Veteran suffered from peripheral neuropathy, which caused pain. The Veteran described the pain as feeling like he was being stuck with pins and needles and as though his feet were falling asleep. In addition, Dr. Simmons opined that the Veteran’s disability was chronic and would only become progressively worse over time. See December 2016 Medical Treatment Record – Non-Government Facility. During an October 2016 Board hearing, the Veteran reported weakness that caused him to lose balance and fall, as well as numbness in the top portion of his surgical scar. See October 2016 Hearing Transcript, page 2. In February 2017, the Veteran was afforded a VA examination utilizing the Disability Benefits Questionnaire (DBQ) for peripheral nerve conditions. During the examination, the Veteran reported mild constant pain, paresthesias and/or dysesthesias, and numbness in his lower extremities. Muscle strength and reflex testing were normal, but the Veteran was noted to have decreased sensation to light touch in his upper anterior thighs, thighs/knees, lower legs/ankles, and feet/toes on sensory examination. No muscle atrophy was noted. The examiner also found that the Veteran had a trendelenburg gait caused by bilateral leg pain and determined that he had mild incomplete paralysis of the sciatic nerve. See February 2017 C&P examination. The Veteran was afforded a VA examination for peripheral nerve conditions dated September 22, 2017. During the examination, the Veteran stated that his symptoms had progressed and reported tingling, numbness, and pain in his lower extremities. The Veteran was noted to have mild constant pain and numbness and moderate intermittent pain and paresthesias and/or dysesthesias in his lower extremities. Muscle strength testing revealed active movement against some resistance in the Veteran’s left knee extension and ankle plantar flexion and dorsiflexion. On reflex examination, the Veteran’s knees and ankles were noted to be hypoactive and a sensory examination showed decreased sensation to light touch in the Veteran’s thighs/knees, lower legs/toes, and feet/toes. The examiner also noted that the Veteran had a slow, arched gait caused by a back condition. The examiner found moderately severe incomplete paralysis of the Veteran’s sciatic and anterior crural (femoral) nerves, but his external popliteal (common peroneal) nerve was normal. The Veteran also reported functional impairment, to include difficulty sitting and standing for long periods of time. Following the examination, the examiner characterized the severity of the Veteran’s lower extremity peripheral neuropathy as moderate. See October 2017 C&P examination. The Veteran was afforded another VA examination for peripheral nerve conditions on May 29, 2019. During the examination, the Veteran reported moderate constant pain and severe intermittent pain, paresthesias and/or dysesthesias, and numbness in his lower left extremity. Muscle strength testing revealed active movement against some resistance in the Veteran’s knee extension and ankle plantar flexion and dorsiflexion. On reflex examination, the Veteran’s left knee and ankle were found to be hypoactive, and a sensory examination showed decreased sensation to light touch in his lower legs/toes and feet/toes. There was no muscle atrophy present. The examiner found moderate incomplete paralysis in the Veteran’s sciatic, external popliteal (common peroneal), and anterior crural (femoral) nerves. The Veteran also reported functional impairment, to include difficulty standing, sitting, and walking for any period of time, and the examiner stated that weakness in the Veteran’s left lower extremity made him a safety risk in occupational settings. See May 2019 C&P examination. Following a review of the evidence of record, the Board finds that the current nature and severity of the Veteran’s service-connected peripheral neuropathy remains unclear. Specifically, the Board needs additional information to clarify the significance of the Veteran’s reported symptoms, to include hip and thigh pain, the October 2004 private EMG and November 2007 MRI results, and findings noted in VA examinations. The Board notes that the October 2004 EMG showed neurogenic recruitment in the Veteran’s gluteus maximus with some nerve loss, decreased amplitude, and left peroneal neuropathy, and the November 2007 MRI, revealed severe left foraminal narrowing at L5-S1 with left L5 root compression and bilateral adrenal nodular lesions. See May 2006 Medical Treatment Record – Non-Government Facility; February 2017 CAPRI. During the August 2007 VA examination, the assessment was chronic left hip pain that radiated to left femur, secondary to chronic gluteal weakness of left hip from hip surgery to repair a 1981 fracture. However, only the sciatic nerve has a compensable rating from October 19, 2004, the date of the EMG, when it appears that involvement of the left hip may also be involved. In addition, the Board finds that the August 2015 VA examination indicates additional pathology related to the surgical scars on the Veteran’s left lateral hip and thigh. See July 2017 CAPRI. As such, the addendum opinion should also address whether the Veteran’s scars are entitled to a separate rating. Lastly, the Board notes that a June 2017 report of general information shows that there were no VA treatment records from the Central Alabama VA Medical Center (VAMC), Birmingham VAMC, or Tuscaloosa VAMC dated after October 2016. See June 2017 VA Form 27-0820 Report of General Information. However, with the exception of subsequent VA examinations, the most recent VA treatment record associated with the Veteran’s claims file is dated in December 2010. Thus, on remand, updated VA and private treatment records should be obtained and associated with the Veteran’s claims file. See 38 U.S.C. § 5103A(c). The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA and private treatment records from the Veteran not already associated with the claims file, to include records from the Central Alabama, Birmingham, and Tuscaloosa VAMCs dated after December 2010. If any treatment records are unavailable, notify the Veteran so that he can submit any medical records in his possession. 2. After completion of the above development, obtain an addendum opinion from an appropriately qualified medical professional regarding the current nature and severity of the Veteran’s diagnosed peripheral nerve disabilities, to include peripheral neuropathy of the left lower anterior crural (femoral), sciatic, external popliteal (common peroneal), and external cutaneous nerve of the thigh nerves. (a.) Prior to the September 22, 2017 VA examination, was there any involvement of nerves other than the left sciatic and left common peroneal? i. In particular, the Board is seeking clarification regarding the significance of the Veteran’s reports of left hip/thigh pain; October 2004 private EMG report which showed neurogenic recruitment in the Veteran’s gluteus maximus with some nerve loss, decreased amplitude, and left peroneal neuropathy; and the August 2007 VA examination assessment of chronic left hip pain that radiated to left femur, secondary to chronic gluteal weakness of left hip from hip surgery to repair a 1981 fracture. ii. Which nerve(s) are affected? Specifically, address whether the nerve(s) affecting the gluteus maximus, left hip, and left thigh are involved. (b.) The examiner should also provide an opinion as to whether the August 2015 VA examiner’s diagnosis of mild, incomplete neuropathy of the lateral femoral cutaneous nerve with numbness that extended a few inches out from either vertical scar on the Veteran’s lateral left hip and thigh constitutes a separate and distinct disability from any identified peripheral neuropathy disabilities. A complete rationale should be provided for any opinion expressed. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, they should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion sought. 3. Thereafter, the RO should readjudicate the claims on appeal, and determine whether a separate rating is warranted for scars in connection with the residuals of the left femur. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Law Clerk 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.