Citation Nr: 21005584 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-51 619 DATE: February 2, 2021 ORDER Entitlement to an increased 10 percent rating, but no higher, from March 14, 2016, for left lower extremity neuropathy and neuralgia is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to compensation for loss of the right testicle following inguinal hernia surgery under 38 U.S.C. § 1151 is remanded. FINDING OF FACT From March 14, 2016, left lower extremity neuropathy and neuralgia more nearly approximated moderate incomplete paralysis of the musculocutaneous nerve (superficial peroneal); at no time was severe incomplete paralysis more nearly approximated. CONCLUSION OF LAW From March 14, 2016, the criteria for a uniform 10 percent increased rating, but no higher, for left lower extremity neuropathy and neuralgia are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1-4.10, 4.123, 4.124, 4.124a, DC 8722. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1988 to November 1991. This case initially came before the Board of Veterans' Appeals (Board) on appeal from May 2016 and May 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the May 2016 rating decision, the RO, in pertinent part, denied an increased rating for service-connected left lower extremity neuropathy and neuralgia. In the May 2017 decision, the RO, in pertinent part, denied compensation for loss of the right testicle following inguinal hernia surgery under 38 U.S.C. § 1151 and service connection for a hernia disorder. In a May 2019 decision and remand, the Board denied the Veteran's claims for compensation for loss of the right testicle under 38 U.S.C. § 1151 and service connection for a hernia disorder. It remanded the increased rating claim for left lower extremity neuropathy and neuralgia. The Veteran appealed the denied claims from the May 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In an April 2020 Court Order granting a Joint Motion for Partial Remand (JMR) the Court vacated the denials from the Board's May 2019 decision and remanded these claims for further development in compliance with the directives specified in the JMR. In July 2020, the Board remanded the claims subject to the April 2020 JMR for additional development. In a November 2020 rating decision, the RO granted service connection for right inguinal hernia repair. Since this rating action results in a complete grant of the benefit sought, this claim is no longer on appeal. For the increased rating claim, the development action requested in the May 2019 Board remanded has been completed as discussed below, and this issue is ready for appellate review. Then, as the last preliminary matter, the Veteran filed a Form 10182, Decision Review Request: Board Appeal in September 2019. He requested an opt in from a May 2019 Supplemental Statement of the Case (SSOC) for the issue of loss of right testicle. However, no SSOC was issued within the applicable time period. It appears the Veteran mistakenly identified the May 2019 Board decision as a SSOC. Although it does not appear the Veteran was specifically notified, the September 2019 Form 10182 is invalid, and this issue must currently be processed under the Legacy appeals framework. 38 C.F.R. §§ 19.2; 19.52(b). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The decided increased rating claim is subject to the May 2019 Board remand. The May 2019 Board remand instructed the agency of original jurisdiction (AOJ) to obtain outstanding VA and private medical records identified by the Veteran and furnish a VA examination. The Veteran submitted private physical therapy records in August 2019, and underwent a VA peripheral nerves examination in September 2019. The AOJ obtained updated VA treatment records from multiple VA medical centers in September 2019, and AOJ readjudicated the claim in April 2020. The record is in substantial compliance with the May 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). In sum, the Board concludes that another remand for additional development would result in additional delay without any benefit flowing to the Veteran. Winters v. West, 12 Vet. App. 203, 208 (1999) (en banc) ("[A] remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the [Board] without the possibility of any benefits flowing to the appellant"); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). Increased rating for left lower extremity neuropathy and neuralgia Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran is currently service connected for left lower extremity neuropathy and neuralgia, residual of soft tissue injury, with a noncompensable disability rating throughout the appeals period under Diagnostic Code (DC) 8722. 38 C.F.R. § 4.124a, DC 8722. He filed an increased rating claim for this disability on March 14, 2016. Thus, evidence from March 14, 2015 to include the one year look back period for increased rating claims must be considered. 38 C.F.R. § 3.400(o). Diseases affecting the nerves are rated based upon degree of paralysis, neuritis, or neuralgia under 38 C.F.R. § 4.124a. Pursuant to 38 C.F.R. § 4.123, when the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. Neuralgia, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the listed scale, with a maximum rating equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. DC 8722 provides ratings for neuralgia of the musculocutaneous nerve, superficial peroneal. Under DC 8722, a noncompensable rating is assigned for mild incomplete paralysis. A 10 percent rating is assigned for moderate incomplete paralysis. A 20 percent rating is assigned for severe incomplete paralysis. A 30 percent rating is assigned for complete paralysis, eversion of foot weakened. See 38 C.F.R. § 4.124a, DC 8722. 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 should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a, DC 8722. In May 2016, the Veteran had a VA peripheral nerve examination with an Advanced Practice Nurse (APN). The APN assessed neuralgia of the left leg. He noted that the clinical records did not show any treatment for this disability since 2012. The Veteran reported experiencing an increased pain sensation with any impact to his left leg. He otherwise denied paresthesia or pain. The APN detailed a sympathetic-like pain with any impact to the area that lasted no more than 30 seconds. It affected the left leg area above his ankle and below the knee and only occurred with an impact to the affected area. Muscle testing and reflex examinations were normal. Sensory examination showed decreases in the left lower leg nerves with L4/L5/S1. The APN commented that there was decreased light touch at the outer aspect of the left lower calf. No trophic changes were found. Gait was normal. The APN assessed incomplete paralysis of the left musculocutaneous (superficial peroneal) nerve of a mild severity. He stated that it would not affect the Veteran’s ability to work. July 2016 VA treatment records noted that the Veteran had a history of occasional left leg instability dating to 2012 or 2013. His leg unpredictively “gave out.” It occurred two to three times per month. The Veteran reported that after prolonged standing his left leg would develop weakness. He also had paresthesias over the left lower lateral leg above lateral malleolus with any type of impact to that area. The symptoms lasted from seconds to two or three minutes. He denied any specific hip, knee or ankle pain. Physical examination showed the Veteran to have a normal gait. He was able to stand on his tip toes and squat without difficulty. Sensation of the left lower extremity foot, ankle and lower leg was intact to monofilament and pinpoint. The physician assessed left leg instability. He noted the peroneal nerve neuralgia history. However, clinical examination was unremarkable with strength and sensation intact. There was no deformity or foot drop. He could not identify an etiology for the symptoms and did not recommend further testing at this time. He instructed the Veteran to return if his symptoms worsened. Subsequent VA treatment records listed numbness of the lower limb as an active problem. In his August 2016 notice of disagreement (NOD), the Veteran reported that he had left lower extremity pain. He stated a light tap caused left leg pain and he encountered additional functional impairments, such as with pushing the clutch on his truck and ascending stairs. He reported that he was unemployed and limited in finding suitable work. October 2016 VA podiatry clinic records showed that the Veteran sought treatment for longstanding left leg pain following an in-service crush injury. Since the injury, the area had been quite sensitive to touch. The Veteran was able to manage the pain for many years since he was not standing for prolonged periods. He recently had to sell his truck because it was too painful to use his left leg with the clutch. Currently, he described weakness pulling his foot up and shocking pain with any type of touch to the side of his left leg. Clinical evaluation showed 4/5 left dorsiflexion strength. Positive Valleix sign with palpation along left lateral fibula from distal third of leg to lateral malleolus. There was no pain with palpation to left plantar heel, no temperature changes at injury site, no pain at first metatarsal phalangeal joint (MPJ) joint, hallux, and lesser digital flexion and extension on the left. Gait was normal without any evidence of foot drop. X-rays showed small protuberance of the distal tibia laterally. The podiatrist assessed left leg pain, possible entrapment neuropathy from scar tissue and mild weakness with anterior compartment muscles. He recommended PT to strengthen the affected muscles. February 2017 VA physical therapy (PT) records showed that the Veteran underwent PT for approximately the past month. The treatment was for deconditioning and muscle weakness following surgery. The Veteran had mild lower extremity weakness and low activity tolerance. He had nine PT sessions. His lower extremity strength was 5/5 and he was able to squat without pain. He was able to tolerate aerobic activity and independent with his home exercise program (HEP). He was discharged from PT with plans to follow up with his physician as needed and continue his HEP. February 2017 VA treatment records showed that the Veteran complained about persistence of right inguinal pain and paresthesia following October 2016 and December 2016 surgeries. He had recently completed PT to improve right lower extremity (RLE) pain and function with success. The right inguinal/ paresthesia pain was worse with exercise but had improved since recent surgeries. Clinical findings were within normal limits. The clinician assessed inguinal pain and advised temporary reduction of more strenuous activities or exercise. June 2017 VA treatment records showed that the Veteran sought treatment for back pain. It mostly affected the left side and extended down the gluteal muscle. He stated that these muscles were tight and knotted. He denied any shooting pain, numbness or tingling in his lower extremities. The physician recommended light stretching and exercise with pain medication as needed. In November 2017, the Veteran stated that he sustained an in-service crush injury to his left lower leg and ankle. He had peripheral nerve damage and muscle weakness. A recent X-ray confirmed abnormality to the region. He stated that the slightest touch to the affected area mimicked the sensation of hitting his ‘funny bone.’ The muscle weakness caused his left leg to give out on occasion and limited his ability to stand for prolonged periods. January 2018 VA phone clinic note included complaints about left lower leg pain from the ankle to the knee that had worsened. The pain was constant and felt like a ripping sensation. The Veteran denied swelling, redness or heat in the affected area. Exercises exacerbated the pain. February 2018 VA ultrasound report for the left leg showed normal arterial circulation. In April 2019, the Veteran had private PT for chronic pain of the left lower extremity, lumbar spondylosis and inguinal neuralgia. He reported 4/10 pain on his left lower leg, 3/10 pain for lower mid back and 3/10 pain for his right groin. He was independent with daily activities. He dated his left lower extremity pain to the military crush injury. His groin pain dated to 2016 hernia surgery and his back pain started around 2018. He reported starting to experience pain in the side of his left leg. Left lower extremity muscle strength was knee flexion and extension of 4/5 and complete (5/5) ankle dorsiflexion. The clinician developed an eight week PT plan. May 2019 private PT discharge report noted left lower extremity motor strength for knee flexion and extension continued to be 4/5. The clinician noted partial progress and discharged the Veteran from PT. He advised the Veteran to return if he had an exacerbation of symptoms or was unable to continue self-managing his symptoms. In September 2019, the Veteran had a VA peripheral nerves examination with an Advanced Practice Registered Nurse (APRN). She diagnosed left lower extremity neuropathy and neuralgia, residual of soft tissue injury. Currently, the Veteran reported difficulty with his back, paresthesias in his groin and both thighs and right lower leg posterior to the lateral foot. These symptoms had been present for some time. The APRN noted peripheral nerve symptoms of intermittent pain, mild paresthesias and numbness affecting both lower extremities. The severity was mild. She additionally noted a sympathetic-like pain affecting the lower leg area where the military crush injury occurred. It lasted no more than 30 seconds and only occurred with impact. The area was above his left ankle and below his left knee. It was very specific area and symptoms only occurred with contact affecting this area. Left lower extremity muscle strength, reflexes and sensation were normal. The APRN noted that the Veteran had an area in the distribution of the superficial peroneal cutaneous nerve with decreased sensation. It was the same area where the Veteran described a brief sympathetic type shock with any impact. No trophic changes or gait abnormality was observed. She reported that the Veteran’s left lower extremity neuropathy and neuralgia residual of soft tissue injury was entirely separate from right sided sciatic pain affecting his right lower extremity. For the following reasons, a uniform 10 percent rating throughout the claim period is warranted for service-connected left lower extremity neuropathy and neuralgia, residual of soft tissue injury. The evidence consistently shows that the Veteran had left lower extremity sensory disturbances. However, there are additional reports about left lower extremity weakness. (See VA treatment records from July 2016 and October 2016; Veteran statement from November 2017; April 2019 private PT records). The Veteran is competent to report about associated left lower extremity weakness and functional impairment, such as inability to drive a manual transmission vehicle. Indeed, some of the clinical evaluations corroborate his reports about left leg weakness. The Board finds that a left lower extremity weakness is shown as an additional symptom. With probative evidence of left lower extremity weakness as a manifestation, the Veteran’s left lower extremity neuropathy and neuralgia more nearly approximates moderate incomplete paralysis of the musculocutaneous nerve. 38 C.F.R. §§ 4.7, 4.123, 4.124, 4.124(a), DC 8722. The evidence weighs against a finding that the Veteran’s left lower extremity neuropathy and neuralgia more nearly approximates severe incomplete paralysis of the musculocutaneous nerve to warrant the next higher, 20 percent rating. Id. The regulations specify that neuralgia warrants a maximum rating equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. There is no lay or medical evidence to suggest widespread left lower extremity motor impairment, absent reflexes, trophic changes or muscle atrophy that are typically associated with more severe neurological impairment. The clinical assessments are not indicative of more severe disability, such as including findings consistent with neuritis or partial nerve paralysis. See 38 C.F.R. § 4.123. At worst, the Veteran reports occasional left leg weakness associated with prolonged standing. (See Veteran’s reports from July 2016 and November 2017). These episodes occurred approximately up to three times per month. However, there is no significant fall history or significant functional impact beyond the reported inability to drive with a manual transmission or difficulty standing for long periods. Briefly, the Board notes that the one year look back period for increased rating claims. 38 C.F.R. § 3.400(o). The evidence does not suggest any worsening or increase in the left lower extremity neuropathy and neuralgia disability one year prior to the March 2016 increased rating claim. (See also May 2016 VA examination report; July 2016 VA treatment records). Further consideration of an effective date prior to the date of the increased rating claim is not warranted. Id. For the above stated reasons, the Board finds that a uniform 10 percent rating, but no higher, for left lower extremity neuropathy and neuralgia is warranted from March 14, 2016, which is the date of the increased rating claim. In all other respects, the preponderance of the evidence is the claim, and the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Additional rating considerations The Board has considered entitlement to a total disability rating based upon individual unemployability (TDIU) as part of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The record reflects that the Veteran is unemployed. Although his August 2016 report indicates difficulty finding work due to disability, he has not specifically asserted unemployability due to service-connected disabilities. He is currently an active VA Vocational Rehabilitation and Employment (VR&E) program participant. Further consideration of a TDIU is not warranted at this time. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Entitlement to compensation for loss of the right testicle following inguinal hernia surgery under 38 U.S.C. § 1151 is remanded. Although the Board regrets the delay, another medical opinion from a urologist or similarly qualified genitourinary specialist is needed to comply with the July 2020 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The July 2020 Board remand instructed the AOJ to obtain a genitourinary medical opinion from a urologist if possible. For the medical opinions, the remand instructed the medical specialist to review the claims folder and opine on both (a) the fault element in furnishing care surrounding the October 2016 inguinal hernia surgery and (b) the foreseeability element about the postoperative complications. See 38 U.S.C. § 1151. The medical specialist was also instructed to specifically consider the Veteran’s handwritten November 30, 2016 note about his conversation with the VA surgeon and a complete copy of the October 2016 surgical consent form. The AOJ obtained an October 2020 medical opinion from a physician practicing in internal medicine. The physician did not directly address the 38 U.S.C. § 1151 fault element and the portions of the Veteran’s November 30, 2016 letter suggestive of fault by the VA surgeon. He only addressed whether the postoperative complications were reasonably foreseeable. Given this limitation, the Board finds that the October 2020 medical opinion is not in substantial compliance with the July 2020 Board remand and another medical opinion is needed as instructed below. Id. The matter is REMANDED for the following action: Contact a urologist or similarly qualified genitourinary specialist for a medical opinion under 38 U.S.C. § 1151. The specialist must conduct a complete review of the claims folder. Following a complete review of the claims folder, the specialist must opine as to the following: (a) Whether it is at least as likely as not (i.e., a 50 percent or more probability) that the Veteran's additional disability of loss of the right testicle was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part or VA's failure to exercise the degree of care that would be expected of a reasonable health care provider. (b) Whether it is at least as likely as not that any additional disability, to include the loss of the right testicle, was due to an event not reasonably foreseeable. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not find to be an ordinary risk of the treatment or lack of treatment. The specialist should clearly explain and discuss the medical evidence and the medical principles involved for any opinions expressed. With regards to (a), the specialist must consider the Veteran's handwritten note dated November 30, 2016 indicating that the surgeon who performed the inguinal hernia repair surgery was not aware of the Veteran's prior history of inguinal hernia repair surgery and that the Veteran's testicular ischemia was misdiagnosed. Furthermore, based on the November 30, 2016 VA treatment note by the performing surgeon, the specialist should comment on whether the Veteran's prior history of inguinal hernia repair increased the risk of testicular complications, and in particular, testicular ischemia. Finally, with regards to (b), the specialist should consider the full October 2016 signed consent document uploaded to the electronic record in January 2020. All opinions expressed must be accompanied by a complete rationale. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.