Citation Nr: A21016841 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 200224-66438 DATE: October 18, 2021 ORDER Entitlement to service connection for radiculopathy of the pudendal nerve, to include as secondary to service-connected back strain with degenerative changes and associated residuals, is granted. REMANDED Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to a rating in excess of 0 percent (under Diagnostic Code (DC) 8529) for right lower extremity radiculopathy of the external cutaneous nerve is remanded. Entitlement to a rating in excess of 10 percent (under DC 8526) for right lower extremity radiculopathy of the anterior crural nerve prior to July 23, 2019 is remanded. Entitlement to a rating in excess of 20 percent (under DC 8526) for right lower extremity radiculopathy of the anterior crural nerve from July 23, 2019 is remanded. Entitlement to a rating in excess of 0 percent (under DC 8529) for left lower extremity radiculopathy of the external cutaneous nerve is remanded. Entitlement to a rating in excess of 10 percent (under DC 8526) for left lower extremity radiculopathy of the anterior crural nerve prior to July 23, 2019 is remanded. Entitlement to a rating in excess of 20 percent (under DC 8526) for left lower extremity radiculopathy of the anterior crural nerve from July 23, 2019 is remanded. FINDING OF FACT The Veteran is service-connected for back strain with degenerative changes and associated residuals; the competent medical evidence of record found the radiculopathy of the pudendal nerve was caused by his service-connected bilateral lower extremity radiculopathy. CONCLUSION OF LAW The criteria for service connection for radiculopathy of the pudendal nerve, to include as secondary to service-connected bilateral lower extremity radiculopathy, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1970. In February 2020, two Statements of the Case (SOC) were issued. Subsequently on the same date in February 2020, two VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) were submitted. On these forms, the "Opt In from SOC" box was marked, which indicated that the issues being appealed were being withdrawn from the legacy appeals process. With this action, the Veteran elected the modernized review system for these appeals. See 38 C.F.R. § 19.2(d)(2). On both February 2020 NODs, the Direct Review Docket was selected. As such, the Board's decision is based on the evidence of record at the time of the February 2020 SOCs. See 38 U.S.C. § 7113(a); 38 C.F.R. § 20.301. Service Connection Pudendal Radiculopathy Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, the Board notes that the Veteran has already established service connection for back strain with degenerative changes and associated residuals, to include bilateral lower extremity radiculopathy. Here, there is also no dispute that the clinical evidence establishes diagnoses of proctalgia fugax and "additional nerve involvement of bilateral lower extremity radiculopathy ... pudendal nerve." See June 2018 Rectum and Anus Conditions and Male Reproductive Organ Conditions Disability Benefits Questionnaires (DBQ) and July 2020 VA Peripheral Nerves Examination Report, respectively. Thus, the first and second elements of secondary service connection are met. Id. In ascertaining whether there is a link between radiculopathy of the pudendal nerve and the Veteran's service-connected bilateral lower extremity radiculopathy, the Board notes the following. A March 2018 VA Primary Care Nursing Note indicated that ("[Veteran] states that he needs to be seen for pain in his groin, rectum, testicles...[Veteran] states that he has been to urology and was told that his problem is neurological"); April 2018 Peripheral Nerve Conditions Disability Benefits Questionnaire (DBQ) ("The pain now radiates throughout his body. It travels to his anus and penile area"); July 2018 Diabetic Sensory-Motor Peripheral Neuropathy DBQ (noting symptoms of "[r]ectal and testicular pain"); August 2018 Peripheral Nerves DBQ ("The [Veteran] states numbness/burning sensation...in the testis and rectal"). The Veteran was afforded a VA examination as part of this claim in June 2018 and a Rectum and Anus Conditions DBQ and a Male Reproductive Organ Conditions DBQ were completed by Dr. M.T. Both DBQs noted a diagnosis of proctalgia fugax. The Rectum and Anus Conditions DBQ noted, under the medical history section, "Nerve Pain In Rectum. The date of onset of the symptoms is 2013. The [Veteran] states the above condition began with rectal pain after his back surgery." Dr. M.T. also provided a negative secondary service connection causation opinion (no secondary service connection aggravation opinion was provided), stating that "the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition." The accompanying rationale stated, in part, that "[t]he claimed condition proctalgia fugax is less likely than not (less than 50 percent probability) proximately due to [degenerative joint disease] of lumbar spine." The Veteran was subsequently afforded a July 2019 VA examination (as part of separate radiculopathy increased rating claims). A Peripheral Nerves Conditions DBQ was completed by T.E., Nurse Practitioner. Under the medical history section, current symptoms were noted as "[c]onstant rectal area pain 4/10." Under the diagnosis section, noted was radiculopathy of the bilateral lower extremities. Under the remarks section, the examiner stated "additional nerve involvement of bilateral lower extremity radiculopathy...pudendal nerve." The examiner also marked an item indicating that "additional conditions were found which are directly due to or related to the service connected diagnosis (i.e. a progression)." The rationale provided for this was that "[a]dditional [n]erve involvement (...pudendal nerve) identified on the day of examination and a progression of the [service-connected] diagnosis of bilateral radiculopathy lower extremity. Condition caused by radiculopathy." Upon review, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for pudendal radiculopathy. As outlined, the claim accepted by the AOJ on the June 2017 VA Form 21-4138 did not identify a specific diagnosis, but noted "excruciating pain in my rectum, testes, and the muscle between my testes and rectum." The Veteran also stated that "[t]he doctor claim it[']s a nerve." The July 2019 VA Peripheral Nerves Conditions DBQ noted "additional nerve involvement of bilateral lower extremity radiculopathy ...pudendal nerve." Based on a medical dictionary definition of the nervus pudendus, the pudendal nerve relates to the areas of pain (rectum, testes and between testes and rectum) claimed by the Veteran. See Dorland's Illustrated Medical Dictionary 1259 (32nd ed. 2012) ("pudendal nerve...branches, enters the pudendal canal, gives off the inferior anal nerve, and then divides into the perineal nerve and dorsal nerve of the penis"). As such, while not specifically claimed by the Veteran's June 2017 claim, the Board finds that radiculopathy of the pudendal nerve is within the scope of the service-connection claim on appeal. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) ("Reasonably, the [Veteran] did not file a claim to receive benefits only for a particular diagnosis, but for the affliction his...condition, whatever that is, causes him"). As to whether the Veteran's radiculopathy of the pudendal nerve was secondary to service-connected disability, the only competent evidence of record addressing this specific issue is the July 2019 Peripheral Nerves Conditions DBQ. This DBQ, essentially, indicated that the Veteran's radiculopathy of the pudendal nerve was secondary to his service-connected disabilities. Specifically, as noted, the medical professional marked the item indicating that "additional conditions were found which are directly due to or related to the service connected diagnosis (i.e. a progression)" and the supporting rationale stated that "[a]dditional [n]erve involvement (...pudendal nerve) identified on the day of examination and a progression of the [service-connected] diagnosis of bilateral radiculopathy lower extremity. Condition caused by radiculopathy." The Board finds this DBQ to be the most probative evidence of record as to the issue of whether the Veteran's radiculopathy of the pudendal nerve is secondary to service-connected disability and notes that there is no competent opinion of record contrary to this positive evidence. Resolving any reasonable doubt in the Veteran's favor, the Board finds that the July 2019 DBQ is sufficient evidence to show that secondary service connection is warranted for radiculopathy of the pudendal nerve. In sum, the Board finds that radiculopathy of the pudendal nerve was caused by service-connected bilateral lower extremity radiculopathy. As such, the Board concludes that the criteria for service connection for radiculopathy of the pudendal nerve have been met and, to this extent, the Veteran's claim is therefore granted. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS FOR REMAND 1. Increased Rating Right Lower Extremity Radiculopathy of the External Cutaneous Nerve in Excess of 0 Percent. 2. Increased Rating Right Lower Extremity Radiculopathy of the Anterior Crural Nerve in Excess of 10 Percent prior to July 23, 2019. 3. Increased Rating Right Lower Extremity Radiculopathy of the Anterior Crural Nerve in Excess of 20 Percent from July 23, 2019. 4. Increased Rating Left Lower Extremity Radiculopathy of the External Cutaneous Nerve in Excess of 0 Percent. 5. Increased Rating Left Lower Extremity Radiculopathy of the Anterior Crural Nerve in Excess of 10 Percent prior to July 23, 2019. 6. Increased Rating Left Lower Extremity Radiculopathy of the Anterior Crural Nerve in Excess of 20 Percent from July 23, 2019. The Board finds that prior to the February 2020 SOC, a duty to assist error occurred related to all the increased ratings on appeal. Specifically, the AOJ did not obtain certain medical records it should have obtained pursuant to VA's duty to assist. Remand is therefore warranted to correct such error. See 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). VA's duty to assist includes obtaining sufficiently identified VA treatment records, to include records of treatment at non-VA facilities authorized by VA or at VA expense. See 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(3); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) ("We hold that [38 C.F.R] § 3.159(c)(3) extends the VA's duty to assist to obtaining sufficiently identified VA medical records or records of examination or treatment at non-VA facilities authorized by VA, regardless of their relevance"). A limitation to the duty to assist in this context is "if no reasonable possibility exists that such assistance would aid in substantiating the claim." See 38 U.S.C. § 5103A(a)(2); see also 38 C.F.R. § 3.159(d). In this case, there are two specific non-VA records that were sufficiently idented but that were not obtained. First, an August 27, 2018 VA record titled "NONVA Consult" stated "VistA Imaging - Scanned Document." VA treatment records indicated that the referenced scanned document was related to private medical treatment authorized by VA. See March 2018 VA Primary Care Note (noting an assessment of "lumbago with sciatica: Neurosurgery consult placed"); August 2019 VA Primary Care Note ("He was seen by neurosurgeon, Dr. E.L. from Baptist Hospital in 8/27/2018"). Second, an October 24, 2019 VA record titled "NONVA Consult" stated "VistA Imaging - Scanned Document" and "Community Care Neurosurgery Consult Result Note." VA records indicated that the referenced scanned documented was related to private medical treatment authorized by VA. See August 2019 VA Primary Care Note (noting an assessment of "[l]umbago with sciatica" and a plan of "[n]eurosurgery consult to follow after completion of imaging studies"); October 11, 2019 VA NONVA Note (with a heading of "Patient Centered Community Care (PC3) Program" and noting authorization for neurosurgery treatment). In review, the Veteran obtained medical treatment at non-VA facilities authorized by VA or at VA expense. Records related to this treatment were sufficiently identified by VA treatment records as being in VA's possession, but such records were not obtained (i.e., associated with the electronic claims file). The Board finds that the failure to obtain the identified records was a pre-decisional duty to assist error by the AOJ. Remand is therefore warranted to obtain the sufficiently identified medical records. 7. Service Connection Left Hip Disability. 8. Service Connection Right Hip Disability. The Board finds that, prior to the February 2020 SOC, a duty to assist error occurred. Specifically, while the AOJ afforded the Veteran an examination and obtained an opinion, the opinion was not entirely sufficient to adjudicate the Veteran's claim. Remand is therefore warranted to obtain a new VA opinion. See 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). The Veteran has contended, essentially, that his claimed bilateral hip disability is secondary to a service-connected back disability and bilateral lower extremity radiculopathy. See October 2018 NOD ("Service connection, secondary to his service-connected back condition, is warranted for the listed conditions. It is the [V]eteran's position the issues on appeal are a direct result of the lumbar spine injury and the resulting nerve damage"). The Veteran was afforded a VA examination in June 2018 and a Hip and Thigh Conditions DBQ was completed by Dr. M.T. A diagnosis was noted of bilateral hip strain. Under the medical history section, it was stated that "[t]he date of onset of the symptoms is 10/2013. The [Veteran] states the above condition began with hip pain after his back surgery." Dr. M.T. also provided a negative secondary service connection causation opinion, stating that "the claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition." The accompanying rationale stated: The claimed condition [bilateral] hip joints is less likely than not (less than 50 percent probability) proximately due to lumbar spine based on medical records containing numerous clinical notes throughout medical records reporting NORMAL gait except for today's exam of abnormal gait which suggest current hip joint issues is not due to lumbar spine. Upon review, the Board finds that this opinion was not entirely sufficient. First, no specific secondary service connection aggravation opinion was provided and the language of the rationale did not otherwise encompass a discussion of aggravation. It was a duty to assist error for the AOJ to obtain a secondary service connection opinion that did not address aggravation. See Healey v. McDonough, 33 Vet. App. 312, 322 (2021) ("When VA instructs an examiner to provide an opinion as to secondary service connection, that examiner must separately address the causation and aggravation prongs of secondary service connection"). Second, as to the provided secondary service connection causation opinion, the Board finds that the rationale was problematic. In this regard, the rationale was premised, essentially entirely, on the notion that "medical records containing numerous clinical notes throughout medical records reporting NORMAL gait." The only medical records related to the Veteran's gait that were cited by the examiner (in the evidence review section) were April 2012, July 2014 and April 2018 Back (Thoracolumbar Spine) Conditions DBQs. The July 2014 and April 2018 DBQs, however, did not state that the Veteran's gait was normal. In this regard, the July 2014 DBQ noted that the Veteran did not have muscle spasm or guarding of the thoracolumbar spine resulting in abnormal gait, but not that the Veteran did not have an abnormal gait in general. Moreover, the examiner elsewhere stated that "[t]he [V]eteran ambulated with a slight limp on the right." The April 2018 DBQ noted that the Veteran did not have guarding or muscle spasm of the thoracolumbar spine and left blank boxes related to whether guarding or muscle spasm resulted in abnormal gait, without noting that Veteran had an abnormal gait. As such, the citations to the July 2014 and April 2018 DBQs for the proposition that the Veteran had a normal gait indicated that the examiner's opinion was based, at least in part, on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value") In addition, while the opinion noted "numerous clinical notes throughout medical records reporting NORMAL gait," other evidence of record (including records of record at the time the opinion was provided, as well as some subsequently obtained records) also noted the Veteran as having an abnormal gait and using an assistive device. Examples of such records are outlined in the remand directives below. The lack of discussion of records showing an abnormal gait further indicates that the examiner's opinion was based on an inaccurate factual premise and also that it was not based upon consideration of the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("An opinion is adequate where it is based upon consideration of the veteran's prior medical history"). In review, in light of the issued identified as to the VA opinion obtained in this case, the Board finds that a pre-decisional duty to assist error was committed by the AOJ in not obtaining an opinion that was entirely sufficient to adjudicate the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("Once [VA] undertakes the effort to provide an examination when developing a service-connection claim...[VA] must provide an adequate one"). Remand is therefore warranted to obtain a new VA examination and opinion, as outlined further in the remand directives below. The Board also finds that an additional pre-decisional duty to assist error occurred prior to the February 2020 SOC, with respect to the right hip claim. Similar to the discussion above as to the increased rating claims being remanded, specific non-VA records were sufficiently idented but were not obtained. Specifically, an October 24, 2019 record titled "NONVA Consult" stated "Non VA Care Consult Result Note: VistA Imaging - Scanned Document" and an addendum record stated "Document scanned w/ SAR for Ortho for Right hip pain." This indicated that the Veteran obtained medical treatment related to his right hip at a non-VA facility authorized by VA or at VA expense. Such records were sufficiently identified by VA treatment records as being in VA's possession, but were not obtained (i.e., associated with the electronic claims file). The Board finds that the failure to obtain the identified records was a pre-decisional duty to assist error by the AOJ. Remand is therefore also warranted to obtain the sufficiently identified medical records. The matters are REMANDED for the following action: 1. Afford the Veteran a VA examination with respect to his bilateral hip disability claim. The examiner must provide an opinion addressing the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any left or right hip disability, to include hip strain, is due to or caused by the Veteran's service-connected back strain with degenerative changes and/or his service-connected right and left lower extremity radiculopathy. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any left or right hip disability, to include hip strain, has been aggravated (i.e., increased in severity) by the Veteran's service-connected back strain with degenerative changes and/or his service-connected right and left lower extremity radiculopathy. The examiner's attention is invited to evidence indicating that the Veteran had an abnormal gait and used an assistive device, which included (a.) VA treatment records dated from 2013 to 2019. See April 2013 Note ("ambu[la]tes weakly with steady gait due to back pain"); November 2015 Note (noting a diagnosis of low back pain and the issuance of a cane); July 2016 Note ("Gait is slow and guarded using a cane"); February 2017 Note ("Gait is slow and guarded"); February and March 2017 Notes ("antalgic gait requiring use of standard cane"); August 2019 Note ("antalgic gait walking with cane on the left side"); August 2019 Note (noting a diagnosis of lumbago with sciatica, right side, a problem of gait imbalance and the issuance of a rollator). (b.) VA examinations dated from 2014 to 2019. See July 2014 VA Back (Thoracolumbar Spine) Condition DBQ ("[t]he [V]eteran ambulated with a slight limp on the right"); August 2018 Peripheral Nerves Conditions DBQ ("Gait is abnormal due to lower back pain" and noting the constant use of a cane because of back pain); July 2019 Peripheral Nerves Conditions DBQ (noting an antalgic gait and constant use of a cane due to lumbar degenerative disc disease). (c.) Various Dr. J.G. private medical records, received in May 2019, dated from 2014 to 2019. See, e.g., January 2018 Note ("Gait and Station: antalgic, mildly stooped and limping" and "limited ambulation and ambulation with cane"); September 2014 Note ("Gait and station: Abnormal"). (d.) A June 2013 private medical record from Dr. S.Z., received in June 2014, which noted "slight right antalgic gait." (e.) The Veteran's July 2017 VA Form 21-4138, where he stated "[b]ecause of my back; hip and leg, I walk with a cane." For all opinions provided, the examiner must include the underlying reasons for any conclusions reached. 2. Obtain (i.e., associate with the electronic claims file) the non-VA records identified as being scanned into VistA imaging. This specifically includes the records noted in: (a.) An August 27, 2018 VA record titled "NONVA Consult," which stated "VistA Imaging - Scanned Document." (b.) An October 24, 2019 VA record titled "NONVA Consult," which stated "VistA Imaging - Scanned Document" and "Community Care Neurosurgery Consult Result Note." (c.) An October 24, 2019 record titled "NONVA Consult," which stated "Non VA Care Consult Result Note: VistA Imaging - Scanned Document" and a related addendum record which stated "Document scanned w/ SAR for Ortho for Right hip pain." K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.