Citation Nr: 20047033 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 15-18 598 DATE: July 14, 2020 REMANDED Service connection for a right lower extremity disability manifested by pain, numbness, and tingling, to include as secondary to the service-connected low back strain, is remanded. An initial disability rating in excess of 10 percent for the service-connected supraventricular arrhythmia is remanded. REASONS FOR REMAND The Veteran had active service from September 2002 to April 2010. In July 2018, the Board of Veterans’ Appeals (Board) remanded this case for additional development. The Veteran was subsequently granted service connection for his left lower extremity neuropathy. As such, that issue is no longer on appeal at the Board. The Board regrets the additional delay caused by this second remand. However, as further development is necessary for the Board to make well-informed decisions on the remaining issues, another remand is necessary. Service connection for a right lower extremity disability manifested by pain, numbness, and tingling, to include as secondary to service-connected low back strain The Veteran contends he has a right lower extremity disability that is primarily manifested by pain and is caused by his service-connected low back strain. On a December 2019 VA examination for back conditions, the Veteran was diagnosed with left lower extremity radiculopathy, but no diagnosis of a right lower extremity disability was made. The examiner indicated that the Veteran exhibited mild constant pain, moderate intermittent pain, and mild numbness of his right lower extremity. No imaging studies were performed, but the examiner referenced a 2017 electrodiagnostic evaluation of the Veteran’s right leg, which showed no nerve conduction study (NCS) evidence of focal or generalized sensory or motor neuropathy and no electromyography (EMG) evidence of a right lumbar radiculopathy, plexopathy, or myopathy. On a December 2019 VA Disability Benefits Questionnaire (DBQ) for peripheral nerves conditions, the examiner diagnosed the Veteran with peripheral neuropathy and indicated a diagnosis date of 2015. The examiner noted mild constant pain, moderate intermittent pain, and mild numbness in the right lower extremity. He relied on the results of 2017 EMG studies to show that the right lower extremity is normal. The examiner noted that the Veteran experienced shooting pains in the head, arms, and legs, which interfere with activity, forcing him to cease activity when the pain was present. The Board finds that the December 2019 VA examination is problematic and cannot be used to decide the Veteran’s claim. A review of the Veteran’s treatment records shows that he has consistently complained of pain in his right lower extremity. Although the December 2019 VA examiner only assigned a diagnosis for the left lower extremity, he did not separate the right from the left lower extremity in his opinion or rationale, concluding that the Veteran’s bilateral leg numbness and pain are at least as likely as not caused by lumbar/left lower extremity radiculopathy, proximately due to the Veteran’s service-connected low back strain. While the examiner relied on 2017 EMG results to help formulate his opinion, the examiner did not address October 2017 private treatment records from Dr. J.L.P., which show a diagnosis of idiopathic neuropathy. In addition, as the Board acknowledges that pain is a disability when pain reaches the level of functional impairment that affects earning capacity, Saunders v. Wilkie, 886 F.3d 1356 (2018), and as the Veteran has a well-documented history of pain in his right lower extremity, it is necessary for the examiner to explain the extent to which pain in the right lower extremity affects the Veteran’s earning capacity. The examiner merely stated that shooting pains in the head, arms, and legs interfere with activity and force the Veteran to cease activity. In light of the ruling in Saunders, further clarification is needed. Id. Accordingly, the Board finds that the Veteran is entitled to a new examination regarding the nature and etiology of his right lower extremity condition. An initial disability rating in excess of 10 percent for the service-connected supraventricular arrhythmia The record indicates that outstanding private treatment records related to the Veteran’s service-connected supraventricular arrhythmia may be available. Notably, a treatment note in the Veteran’s medical records from St. Charles Health System, dated in December 2019, states, “Sinus tachycardia, otherwise normal ECG compared to ECG 5/4/2016, ventricular rate has increased.” This note indicates that the Veteran has outstanding private treatment records from at least May 2016. There is also no indication that VA attempted to obtain those treatment records. As those records are pertinent to the Veteran’s claim for an increased rating for his service-connected supraventricular arrhythmia, it is necessary for the agency of original jurisdiction (AOJ) to obtain these records on remand. These matters are REMANDED for the following action: 1. The AOJ should undertake appropriate efforts to obtain any relevant, outstanding VA and/or private treatment records, for the Veteran’s right lower extremity and supraventricular arrhythmia disabilities, including May 2016 treatment records from St. Charles Health System. 2. Then, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any current right lower extremity disability, including right lower extremity pain. The claims folder should be reviewed by the examiner in conjunction with the examination. All necessary tests and studies should be performed, and all clinical findings reported in detail. The examiner is specifically asked to: (a.) Identify all currently diagnosed disabilities manifested by right lower extremity pain, numbness, and tingling. See VA treatment records diagnosing idiopathic neuropathy. (b.) For any identified disability, opine whether it is at least as likely as not (a 50 percent probability or greater) that it had its onset during service or is otherwise related to service. (c.) For any identified disability, opine whether it is at least as likely as not (a 50 percent probability or greater) that it was caused or aggravated (made worse) by the Veteran’s service-connected low back strain. (d.) If no current right lower extremity diagnosis is provided, determine whether the Veteran has any functional limitations of his right lower extremity due to pain. If so, opine whether it is at least as likely as not (a 50 percent probability or greater) that any right lower extremity functional limitation present during the appeal period is due to, or the result of, any incident of his active service. The examiner is asked to provide a complete rationale for all opinions expressed. 3. Finally, readjudicate the issues of entitlement to service connection for a right lower extremity disability manifested by pain, numbness, and tingling, on a direct basis and as secondary to the service-connected low back strain—and entitlement to a higher initial rating for the service-connected supraventricular arrhythmia. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.