Citation Nr: 21065156 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 15-41 973 DATE: October 25, 2021 ORDER Entitlement to service connection for bilateral carotid artery disease, as secondary to service-connected non-Hodgkin's lymphoma is granted. An initial 20 percent rating for the Veteran's left lower extremity sciatic nerve neuropathy is granted. A 40 percent rating for the Veteran's left lower extremity sciatic nerve neuropathy, for the period from December 31, 2020, is granted. An initial 20 percent rating for the Veteran's right lower extremity sciatic nerve neuropathy is granted. A 40 percent rating for the Veteran's right lower extremity sciatic nerve neuropathy, for the period from December 31, 2020, is granted. REMANDED Entitlement to a compensable rating for non-Hodgkin's lymphoma is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran has a diagnosis of left and right carotid artery disease that was caused by his service-connected non-Hodgkin's lymphoma. 2. For the period prior to December 31, 2020, the Veteran's sciatic neuropathy of the bilateral extremities was manifested by moderate incomplete paralysis. 3. For the period following December 31, 2020, the Veteran's sciatic neuropathy of the bilateral extremities was manifested by moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral carotid artery disease, as secondary to service-connected non-Hodgkin's lymphoma have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an initial 20 percent rating for left lower extremity sciatic nerve neuropathy have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, 4.40, Diagnostic Code 8520. 3. The criteria for a 40 percent rating for the period following December 31, 2020, for left lower extremity sciatic nerve neuropathy have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. The criteria for an initial 20 percent rating for right lower extremity sciatic nerve neuropathy have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, 4.40, Diagnostic Code 8520. 5. The criteria for a 40 percent rating for the period following December 31, 2020, for right lower extremity sciatic nerve neuropathy have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge during a December 2018 hearing. A transcript of the hearing is associated with the Veteran's claim file. This matter was previously before the Board in May 2019, March 2020, and April 2021, wherein the Board remanded for additional development, to include obtaining additional treatment records and examinations. The matter has returned to the Board for adjudication. Service Connection 1. Entitlement to service connection for bilateral carotid artery disease, as secondary to service-connected non-Hodgkin's lymphoma The Veteran contends, and the medical evidence of record also suggests, that he has a current diagnosis of carotid artery disease that is a residual of his service-connected non-Hodgkin's lymphoma. While the Veteran's claim for an increased rating for non-Hodgkin's lymphoma remains on appeal, the issue of service connection for bilateral carotid artery disease will be addressed separately herein, as the evidence of record is sufficient to proceed with a grant of benefits as to this issue only. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). As to the first element, a current disability, the evidence of record conclusively establishes a current diagnosis of carotid artery disease. The Veteran's VA treatment records show a history of obstruction of the right internal carotid, carotid vascular disease, and carotid stenosis, dating back to September 2009. See CAPRI records, submitted October 28, 2013. Likewise, the Veteran's private treatment records show diagnoses of bilateral carotid artery disease, right carotid bruit, and plaquing of the left carotid artery. See Medical Treatment Record Non-Government Facility, submitted December 30, 2019. Most recently, a VA medical opinion was obtained in June 2021. The examiner indicated that the Veteran was treated for CAD and carotid stenosis in 2009, that he had a carotid endarterectomy in 2010, and that a carotid ultrasound in April 2019 showed a mild plaque present in the left and right carotid arteries. The examiner concluded that the Veteran had left and right carotid artery disease. Based on the foregoing, the Board concludes that the Veteran has a current diagnosis of bilateral carotid artery disease and the first element of service connection on a secondary basis has been met. The remaining inquiry for the Board is whether the Veteran's carotid artery disease was caused or aggravated by his service-connected non-Hodgkin's lymphoma. During the Veteran's December 2018 hearing, he testified that records from his private physician, Dr. J. Y., indicate that his carotid artery disease is related to his service-connected non-Hodgkin's lymphoma. He indicated that a letter confirming such was associated with the record; however, a review of the record showed no such letter from Dr. J. Y. Accordingly, given the Veteran's contentions and the evidence of a diagnosis of carotid artery disease as discussed above, this matter was remanded by the Board in May 2019 to obtain any outstanding private treatment records and a medical opinion that addressed the etiology of the condition. The Veteran was afforded a VA examination in December 2020. The examiner opined that the Veteran's carotid artery disease was at least as likely as not caused by his service-connected non-Hodgkin's lymphoma and the chemotherapy treatment needed as a result. As rationale, the examiner stated that infusion of chemotherapy does not attack just diseased cells, it attacks functioning cells and nerves, and all tissues. The Board finds that the December 2020 examiner's opinion is highly probative, as it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, there is no competent medical opinion of record to refute the findings of the December 2020 examiner. While the Board acknowledges that this issue was remanded for further development in April 2021, the examiner's opinion was limited to whether or not the Veteran had a diagnosis of carotid artery disease. As the examiner did not address the etiology of the condition, the opinion has no probative value as to a determination of whether the condition was caused or aggravated by the Veteran's service-connected non-Hodgkin's lymphoma. Based on the foregoing, the Board finds that the evidence of record establishes that the Veteran has a diagnosis of left and right carotid artery disease that was caused by his service-connected non-Hodgkin's lymphoma. Accordingly, service connection is warranted for bilateral carotid artery disease. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. Increased Rating 2. Entitlement to a rating in excess of 10 percent prior to December 31, 2020, and in excess of 20 percent for the period following, for left lower extremity sciatic nerve neuropathy 3. Entitlement to a rating in excess of 10 percent prior to December 31, 2020, and in excess of 20 percent for the period following, for right lower extremity sciatic nerve neuropathy The Veteran was initially awarded service connection for sciatic neuropathy of the bilateral lower extremities, rated as 10 percent disabling, effective January 16, 2013. In a January 2021 rating decision, a 20 percent rating was assigned effective December 31, 2020. The Veteran asserts that increased ratings are warranted for both portions of the period on appeal. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to a varied level of the nerve lesion or to partial regeneration. When sciatic nerve involvement is wholly sensory, the rating should be for, at most, moderately severe incomplete paralysis. See 38 C.F.R. §§ 4.123, 4.124a. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Period prior to December 31, 2020 Turning to the medical evidence of record, at the time of a November 2012 VA examination related to the Veteran's non-Hodgkin's lymphoma, he reported leg weakness with an inability to stand for long periods. The Veteran was afforded a VA examination in February 2014. As to both lower extremities, the Veteran was noted to have severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. All muscle strength and reflex testing was normal, and there was no evidence of muscle atrophy. The Veteran had decreased sensation of the foot/toes bilaterally. The examiner indicated that the Veteran had mild incomplete paralysis of his bilateral sciatic nerves. As to functional impact, the examiner noted that pain in the Veteran's legs and feet would render him unable to stand or walk for more than 10-15 minutes. At the time of a June 2015 VA examination, the Veteran reported a history of chronic leg pain with numbness and cramping in the toes and feet, that progressed to leg pain from the groin down. He reported his current symptoms as constant aching leg pain from the knee down that worsened with walking and at night. He also reported numbness in the posterior knees, but denied numbness, burning, or stinging pain in the feet. As to both lower extremities, the Veteran was noted to have severe constant pain. All muscle strength testing was normal, and there was no evidence of muscle atrophy. Reflex testing showed absent deep tendon reflexes for the ankles and decreased sensation of the foot/toes bilaterally. The examiner indicated that the Veteran had mild incomplete paralysis of his bilateral sciatic nerves. Additionally, the examiner indicated that findings showed absent vibratory sensation at the great toe IP joint (intact MTP joint) & decreased pressure sensation with monofilament testing of the feet. As to functional impact, the Veteran was noted to have mild limitation in his ability to walk. At the time of a May 2019 VA examination, the Veteran reported a history of being unable to stand, sit, or walk for prolonged periods. He also reported constant pain when resting or in the bed. As to both lower extremities, the Veteran was noted to have mild constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. All muscle strength and reflex testing was normal, and there was no evidence of muscle atrophy. The Veteran was noted to have decreased sensation of the foot/toes bilaterally. With regard to trophic changes, smooth shiny skin was noted on bilateral lower extremities. The Veteran's gait was normal. The examiner indicated that the Veteran had mild incomplete paralysis of his bilateral sciatic nerves. As to functional impact, the examiner indicated that the Veteran was likely to experience difficulty with prolonged walking or standing. The Veteran's VA and private treatment records for this period show subjective complaints of lower leg and foot pain and numbness, but do not contain objective findings related to the severity of any impairment of the sciatic nerve of the lower extremities. In this case, the Board acknowledges that the VA examinations of record each concluded that the Veteran's bilateral lower extremity neuropathy was manifested by mild incomplete paralysis. However, in consideration of the medical evidence showing at worst, severe pain, severe paresthesias and/or dysesthesias, severe numbness, absent deep tendon reflexes, and decreased sensation of the foot/toes bilaterally, the Board finds that the Veteran's disability picture more nearly approximates moderate incomplete paralysis to warrant a 20 percent rating. This is considered in conjunction with the functional impact of the Veteran's nerve impairment, causing an inability to walk and stand for prolonged periods. See 38 C.F.R. § 4.40. The medical evidence of record does not reflect that he experiences weakness, muscle atrophy, other neurological impairments, or other indicia of more than moderate paralysis in either lower extremity for this period. Other than the single finding of absent deep tendon reflexes for the ankles in June 2015, all other VA examination reports of record have noted normal motor strength, and the Veteran's reflex examinations were otherwise normal. For the reasons stated above, an initial 20 percent rating for the Veteran's service-connected sciatic neuropathy of the bilateral lower extremities is granted. Period following December 31, 2020 A VA examination conducted in December 2020 formed the basis of the Veteran's currently-assigned increased 20 percent rating. At the time, the Veteran reported aching pain in the bilateral lower extremities, weakness, and fatigue, burning, numbness and tingling. He reported pain that was 7/8 on a 1-10 scale. As to both lower extremities, the Veteran was noted to have severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness. Muscle strength testing showed active movement against some resistance with knee extension, ankle plantar flexion, and ankle dorsiflexion. Reflex testing showed absent deep tendon reflexes for the bilateral knees and ankles, and decreased sensation of the thigh/knees, lower leg/ankles, and foot/toes bilaterally. There was no evidence of muscle atrophy. As to trophic changes, the Veteran's lower extremities were noted to be shiny, hairless, and tight. The examiner indicated that the Veteran had moderate incomplete paralysis of his bilateral sciatic nerves. The functional impact of the Veteran's neuropathy was noted as an inability to weight bear, walk, and stand. The Veteran's VA treatment records for this period show subjective complaints of lower leg and foot pain and numbness, but do not contain objective findings related to the severity of any impairment of the sciatic nerve of the lower extremities. In this case, the Board acknowledges that the December 2020 VA examiner concluded that the Veteran's bilateral lower extremity neuropathy was manifested by moderate incomplete paralysis. However, in consideration of the medical evidence showing severe constant pain, severe paresthesias and/or dysesthesias, severe numbness, weakness and fatigue, burning, numbness and tingling, the Board finds that the Veteran's disability picture more nearly approximates moderately severe incomplete paralysis to warrant a 40 percent rating. This is considered in conjunction with objective findings of reduced muscle strength throughout the lower extremities, abnormal reflex testing throughout the lower extremities, and functional loss resulting in impairment with weight-bearing, walking, and standing. See 38 C.F.R. § 4.40. There is no evidence of severe incomplete paralysis, with marked muscular atrophy to warrant an increased 60 percent rating. For the reasons stated above, the Board finds that a 40 percent rating for the Veteran's service-connected sciatic neuropathy of the bilateral lower extremities, for the period following December 30, 2020, is warranted. REASONS FOR REMAND 1. Entitlement to a compensable rating for non-Hodgkin's lymphoma is remanded. When this matter was last before the Board in April 2021, it was remanded for further development. In pertinent part, a VA medical opinion was needed to address the following: (1) when the Veteran's non-Hodgkin's lymphoma was last active, to include a discussion of the duration of any active periods and any treatment for the disorder; (2) to determine when the Veteran's non-Hodgkin's lymphoma began to be in the indolent and non-contiguous phase; and (3) an explanation of the findings of the location of the Veteran's lymphoma of the chest as noted in the December 2020 VA examination and lymphoma of the spleen as evidenced in July 2004. The requested medical opinion was obtained in June 2021. The examiner indicated that the Veteran's non-Hodgkin's lymphoma was last active in 2004-2005, prior to 64 treatments of chemotherapy; noting an August 2005 CT scan which revealed that the condition was stable. However, the opinion does not address evidence noted in the April 2021 remand, which suggests that the Veteran's non-Hodgkin's lymphoma was active. Specifically, a June 2019 private treatment record from Gastroenterology Associates noted non-Hodgkin's lymphoma, unspecified, spleen, active and non-Hodgkin's lymphoma (clinical), active. The Veteran's private treatment records from Emerge Ortho document that in October 2019, the Veteran was seen for a follow-up for non-Hodgkin's lymphoma (clinical). As this evidence suggests that the condition may be active and given that the Veteran was not afforded an in-person examination at the time of the June 2021 medical opinion, remand is necessary to determine the current severity of the condition. Additionally, the examiner indicated that the finding in the December 2020 examination that the lymphoma was in the indolent and non-contiguous phase was made in error. However, the examiner failed to address the findings of the location of the Veteran's lymphoma of the chest as noted in the December 2020 VA examination and lymphoma of the spleen as evidenced in July 2004. On remand, this finding must also be addressed. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. The Veteran contends that he is entitled to a TDIU as he cannot secure or follow substantially gainful occupation due to his service-connected conditions. However, as the Board is remanding the case for an updated VA medical opinion regarding the status of his service-connected non-Hodgkin's lymphoma, the Board will defer consideration of the appeal with regard to entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. The Veteran should be afforded the opportunity to identify and submit any outstanding private treatment records relevant to his claims on appeal, or in the alternative, provide a release so that VA can attempt to obtain these records. 2. After completion of the above, schedule the Veteran for an in-person VA examination to assess the severity of his non-Hodgkin's lymphoma. The record, including a copy of this remand, must be made available to the examiner, and an opinion as follows is requested: a.) The examiner is instructed to determine when the Veteran's non-Hodgkin's lymphoma was last active. The examiner must also discuss the duration of any active periods, to include any treatment for the disorder. The examiner must specifically address the following evidence of record: i. A June 2019 private treatment record from Gastroenterology Associates, which noted non-Hodgkin's lymphoma, unspecified, spleen, active and non-Hodgkin's lymphoma (clinical), active. ii. An October 2019 private treatment record from Emerge Ortho, which documented that the Veteran was seen for a follow-up for non-Hodgkin's lymphoma (clinical). b.) The examiner must explain the findings of the location of the Veteran's lymphoma of the chest as noted in the December 2020 VA examination and lymphoma of the spleen as evidenced in July 2004. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.