Citation Nr: 21063695 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 15-01 084 DATE: October 15, 2021 ORDER Entitlement to a rating in excess of 20 percent for complex regional pain syndrome (CRPS), status-post tarsal tunnel release, prior to October 7, 2019 is denied. REMANDED Entitlement to a rating in excess of 40 percent for CRPS, status-post tarsal tunnel release, since October 7, 2019 is remanded. FINDING OF FACT The preponderance of evidence is against a finding that the Veteran's CRPS, status-post tarsal tunnel release, manifested through impairment more severe than moderate incomplete paralysis of the sciatic nerve prior to October 7, 2019. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for CRPS, status-post tarsal tunnel release, prior to October 7, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.124a. REASONS AND BASES FOR FINDING AND CONCLUSION This matter was previously before the Board of Veterans' Appeals (Board) in September 2020. At that time, the Board, in pertinent part, denied a rating in excess of 20 percent for CRPS, status-post tarsal tunnel release, [hereinafter CRPS] prior to October 7, 2019, as well as a rating in excess of 40 percent for CRPS since October 7, 2019. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a joint motion for partial remand (JMPR) that vacated the Board's decision to the extent that it denied a rating in excess of 20 percent for CRPS prior to October 7, 2019 and in excess of 40 percent thereafter. In the JMPR, the parties agreed the Board provided an inadequate statement of reasons and basis for its decision to the extent that it failed to address the probative value of an October 2014 VA addendum medical opinion, in the context of the rating assigned prior to October 7, 2019, as well as an October 2019 VA examiner's report that the Veteran experiences impairment of several lower extremity peripheral nerves, in the context of the rating assigned as of October 7, 2019. The matter has now been returned to the Board for further consideration. Upon further review, in accordance with the terms of the JMPR, the Board finds a rating in excess of 20 percent is not warranted for CRPS prior to October 7, 2019, as discussed in more detail in the following decision. The issue of entitlement to a rating in excess of 40 percent since October 7, 2019 will be addressed in the REMAND section below. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. VA shall give the benefit of the doubt to the claimant when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Initially, the Board notes CRPS is not listed in the VA Rating Schedule; therefore, it must be rated by analogy. See 38 C.F.R. § 4.20 (authorizing analogous ratings for disabilities not listed in the rating schedule). The Agency of Original Jurisdiction (AOJ) has assigned a 20 percent rating for CRPS prior to October 7, 2019, under Diagnostic Code 8699-8620. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating, such as in cases where a condition is not listed in the VA Rating Schedule. 38 C.F.R. § 4.27. Diagnostic Code 8620 generally relates to neuritis of the sciatic nerve and uses the same criteria outlined under Diagnostic Code 8520 for paralysis of the sciatic nerve. See 38 C.F.R. § 4.123. Under these criteria, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. Moderate incomplete paralysis of the sciatic nerve is rated as 20 percent disabling. Moderately severe incomplete paralysis of the sciatic nerve is rated as 40 percent disabling. Severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the diagnostic codes are not defined in the Rating Schedule. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. Additionally, 38 C.F.R. § 4.123 instructs the maximum rating which may be assigned for neuritis not characterized by organic changes, such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. The Board finds the preponderance of evidence is against a finding that the Veteran's CRPS manifested through impairment more severe than moderate incomplete paralysis of the sciatic nerve prior to October 7, 2019. A private June 2009 orthopedic treatment record by G.P., M.D., reflects a diagnosis of right lower extremity CRPS without specific reference to the underlying nerves involved. A January 2010 VA examiner noted the Veteran had symptoms of erythema, coldness, and altered sweat pattern affecting her right ankle and diagnosed neuropathic pain versus reflex sympathy dystrophy status post multiple right ankle surgeries post-stress fracture. At a June 2012 VA examination, the Veteran reported she has daily nerve pain that is burning, "grinding bones with cinder blocks" type pain with tingling in the tips of her toes. She also noted that her ankle/foot is always painful and "always cold", and that she cannot drive anymore. The June 2012 examiner opined, "Given subjective information, documentation, and objective findings, it is this examiner's opinion that [CRPS] of the right ankle and foot is at least as likely as not caused by or secondary to the service-connected right ankle condition [i.e., service-connected right ankle stress fracture]. This affects the entire foot from the proximal ankle to the toes." An August 2014 VA peripheral nerves examiner specifically assessed the Veteran's CRPS of the right foot. The examiner outlined the Veteran's lay reports of symptoms. The August 2014 VA examiner noted the Veteran had an antalgic gait, moderate constant pain, severe intermittent pain (usually dull), moderate paresthesias and/or dysthesias, and no numbness, due to her peripheral nerve condition. Objectively, the examiner found normal reflexes (2+), no muscle atrophy, and slight decrease in strength (4/5) or right-side ankle plantar flexion and dorsiflexion. There was no sensory testing. The examiner found no trophic changes. Nonetheless, the August 2014 VA examiner evaluated the overall severity of the right-side sciatic nerve as "normal." Further, the August 2014 VA examiner noted there was no paralysis, whether incomplete or complete, of any of the peripheral nerves in the Veteran's right lower extremity. In October 2014, the August 2014 VA examiner provided an addendum explaining that the Veteran does not have incomplete paralysis of any of the peripheral nerves but rather hyper-sensitivity that is causing her moderate to severe pain, specifically noting impairment of the medial peroneal cutaneous branch of the saphenous nerve. The Board notes the impairment of the saphenous nerve is rated under Diagnostic Code 8527 (or 8627 for neuritis). Under these criteria, a 10 percent rating is assigned for severe to complete paralysis of the saphenous nerve with mild to moderate incomplete paralysis being noncompensable. 38 C.F.R. § 4.124a. It is unclear why the AOJ elected to apply the criteria of Diagnostic Code 8520 when it initially assigned the rating for CRPS given there was no evidence of sciatic nerve impairment at that time but rather impairment of the saphenous nerve. Nevertheless, the Board will not disturb the rating assigned by the AOJ; however, the Board finds the October 2014 addendum to the August 2014 VA examiner's initial report, to include the report of "painful irritation of the nerve that is severe in nature" as emphasized in the June 2021 JMPR, does not support a rating in excess of 20 percent for CRPS prior to October 7, 2019 because the examiner was specifically discussing irritation of the saphenous nerve not the sciatic nerve. As previously noted, only a 10 percent rating is assigned for severe to complete paralysis of the saphenous nerve; therefore, even if reasonable doubt is resolved in the Veteran's favor to support a finding of severe to complete paralysis of the saphenous nerve, it would not support a rating in excess of the 20 percent already assigned by the AOJ. In reaching this finding, the Board notes it is not changing the diagnostic code under which the Veteran's disability is rated but rather explaining the basis for its determination that there is no evidence to support a finding of impairment more severe than moderate incomplete paralysis of the sciatic nerve contemplated by the rating assigned prior to October 7, 2019, which the VA Rating Schedule establishes is a higher level of impairment that even the most severe impairment of the saphenous nerve, to include complete paralysis. Thus, the criteria for a rating in excess of 20 percent for CRPS, status-post tarsal tunnel release, prior to October 7, 2019 have not been met, and, to that extent, the Veteran's appeal is denied. The Board acknowledges a total disability rating based on individual unemployability (TDIU) is an element of a rating appeal when unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the Veteran does not meet the schedular percentage requirements for TDIU prior to October 7, 2019. See 38 C.F.R. § 4.16(a). A February 2021 Board decision denied entitlement to TDIU on extra-schedular basis. See 38 C.F.R. § 4.16(b). Board decisions are final when issued. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Further, in July 2021, the Veteran's representative submitted a written statement acknowledging the denial of an extra-schedular TDIU and indicating the Veteran considers that issue resolved based upon the Board's February 2021 decision with no desire for further appellate consideration. As a result, it is unnecessary for the Board to revisit the issue in the context of the rating assigned for CRPS prior to October 7, 2019. REASONS FOR REMAND The terms of the JMPR require the Board to consider whether separate ratings are warranted for CRPS under 38 C.F.R. § 4.124a, Diagnostic Codes 8521 to 8525, for the period from October 7, 2019, onward; however, the Board finds further development is necessary to make an informed decision in this regard due to ambiguity in the record as to which nerves have been affected by CRPS since October 7, 2019, as well as the material issue of whether any such impairment is encompassed within the scope of or secondary to the Veteran's service-connected disability. See 38 C.F.R. § 3.310. As noted in the June 2021 JMPR, the Veteran's October 2019 VA examiner noted severe incomplete paralysis of the external popliteal nerve, moderate incomplete paralysis of the musculocutaneous nerve; and severe incomplete paralysis of the anterior tibial nerve, internal popliteal nerve, and posterior tibial nerve whereas a subsequent examiner two months later in December 2019 noted only moderate incomplete paralysis of anterior tibial nerve with no other impairment reported. Neither examiner discussed whether impairment of multiple nerves is encompassed or secondary to the Veteran's service-connected CRPS and/or right ankle disability. The Board is prohibited from addressing these issues without expert evidence to guide its analysis. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matter is REMANDED for the following action: 1. Schedule the Veteran for a new examination to obtain an opinion addressing the ambiguity in the record, as of October 7, 2019, regarding the impairment of the peripheral nerves in her right lower extremity. The selected examiner is asked to provide an opinion reconciling the various examination reports of record regarding which nerves in the Veteran's right lower extremity are at least as likely as not (50 percent probability or greater) affected by any level of impairment. The Board notes a narrative opinion is necessary in this regard due to the conflict in the October 2019 and December 2019 VA examination reports as to which nerves are affected; therefore, the examiner must go beyond simply completing a new peripheral nerves disability benefits questionnaire (DBQ) and must instead provide a specific rationale for his or her conclusion for each nerve in the right lower extremity with an emphasis on reconciling the Veteran's past examination reports. For each nerve affected, the examiner must then address whether the impairment of such nerve is at least as likely as not (50 percent probability or greater) proximately due to, aggravated by, or otherwise encompassed by the Veteran's service-connected CRPS and/or right ankle disability. The secondary service connection aspect of the opinion must address causation and aggravation separately to be deemed adequate. A mere conclusion regarding aggravation without a separate rationale is not sufficient. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. The examiner must be further advised the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. (Continued on the next page) The examination report must include a rationale for all conclusions contained therein. 2. Readjudicate the issue on appeal, to include consideration of whether separate ratings are warranted under 38 C.F.R. § 4.124a, Diagnostic Codes 8521 to 8525, for the period from October 7, 2019, onward, as well as TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), acknowledging the provisions of 38 C.F.R. § 4.16(a) that indicate disabilities resulting from common etiology are considered one disability for the purposes of the schedular percentage requirements for TDIU. If any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.