Citation Nr: 21010835 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 10-49 506 DATE: February 25, 2021 ORDER Entitlement to service connection for peripheral neuropathy of the right lower extremity as due to service-connected complex regional pain syndrome of the right lower extremity is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity as due to service-connected complex regional pain syndrome of the left lower extremity is granted. REMANDED Entitlement to an initial rating greater than 10 percent for a left tibial stress fracture is remanded. Entitlement to an initial rating greater than 10 percent for a right tibial stress fracture is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The record evidence shows that the Veteran’s service-connected complex regional pain syndrome of the bilateral lower extremities caused or aggravated (permanently worsened) her peripheral neuropathy of the right lower extremity and her peripheral neuropathy of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for peripheral neuropathy of the right lower extremity as due to service-connected complex regional pain syndrome of the right lower extremity have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). 2. The criteria for entitlement to service connection for peripheral neuropathy of the left lower extremity as due to service-connected complex regional pain syndrome of the left lower extremity have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had a period of active duty for training (ACDUTRA) in the U.S. Army from June 2006 to February 2007. She also had additional unverified U.S. Army Reserve service. This appeal has a long and complicated procedural history. Most recently, in November 2019, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. The Board directed that the AOJ obtain updated treatment records for the Veteran and schedule her for examinations to determine the nature and etiology of her peripheral neuropathy in each of the lower extremities and the current severity of her service-connected bilateral tibial stress fractures. Additional records subsequently were associated with the claims file. And the requested examinations occurred in January and February 2020. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Having reviewed the record evidence, the Board finds that the claims on appeal should be characterized as stated above. With respect to the higher initial rating claims for bilateral tibial stress fractures and the TDIU claim, the Board recognizes that this appeal was remanded previously. Having reviewed the record evidence, and although the Board is reluctant to contribute to “the hamster-wheel reputation of Veterans law” by remanding this appeal again, additional development is required before the underlying higher initial rating claims for bilateral tibial stress fractures and TDIU claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands “perpetuate the hamster-wheel reputation of Veterans law”). These claims are discussed further in the REMAND portion of this decision below. Because the Veteran currently lives within the jurisdiction of the RO in Montgomery, Alabama, that facility has jurisdiction in this appeal. 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity and for peripheral neuropathy of the left lower extremity The Board finds that the evidence supports granting the Veteran’s claims of service connection for peripheral neuropathy of the right lower extremity and for peripheral neuropathy of the left lower extremity. The Veteran contends that her peripheral neuropathy in each of the bilateral lower extremities is related to active service. The Board agrees. The record evidence shows that the Veteran’s service-connected complex regional pain syndrome of the bilateral lower extremities caused or aggravated (permanently worsened) her peripheral neuropathy in each of the bilateral lower extremities. The Board notes initially that, because it agreed (at least implicitly) in the November 2019 remand with the argument made by the Veteran’s service representative that a December 2017 VA peripheral nerves conditions Disability Benefits Questionnaire (DBQ) was inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating these claims. The record evidence shows that, on VA peripheral nerves conditions DBQ on January 8, 2020, the Veteran’s complaints included continued pain, numbness, and tingling of the bilateral lower extremities, and difficulty walking and standing “for over 10 minutes.” The VA examiner reviewed the Veteran’s electronic claims file, including her service treatment records and post-service VA treatment records. The Veteran’s peripheral neuropathy symptoms were moderate constant pain of the bilateral lower extremities, moderate paresthesias and/or dysesthesias of the bilateral lower extremities, and severe numbness of the bilateral lower extremities, 5/5 muscle strength, no muscle atrophy, normal reflexes, decreased sensation in the bilateral lower legs/ankles, no sensation in the bilateral feet/toes, a normal gait, incomplete paralysis of the bilateral external popliteal (common peroneal) nerves. An electromyograph (EMG) dated in December 2009 showed bilateral lateral plantar neuropathy. A subsequent EMG dated in February 2016 was normal. The VA examiner stated that the Veteran’s service-connected complex regional pain syndrome “cause[s] pain to bilateral lower legs with numbness and tingling making standing for prolonged periods of time difficult[].” The VA examiner opined that it was at least as likely as not that the Veteran’s peripheral neuropathy of the bilateral lower extremities is related to her service-connected complex regional pain syndrome. The rationale for this opinion was based on a review of the claims file. The rationale also was that the Veteran’s peripheral neuropathy of the bilateral lower extremities was a progression of her service-connected complex regional pain syndrome. The diagnoses included peripheral neuropathy of the bilateral lower extremities. The Board acknowledges here that there is a second VA peripheral nerves conditions DBQ dated on January 23, 2020, in which the VA examiner found that no peripheral neuropathy was present in either of the Veteran’s bilateral lower extremities. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). The Court also has held that the value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion.” Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). It is not clear why the AOJ ordered a second examination for peripheral neuropathy of the bilateral lower extremities within 2 weeks of the first examination. It also is not clear whether the VA examiner who completed the January 23, 2020, examination was aware of or reviewed the earlier examination dated on January 8, 2020. Nor did the January 23, 2020, VA peripheral nerves conditions DBQ examiner explain how she arrived at the diametrically opposite conclusion to the findings discussed in the prior examination dated approximately 2 weeks earlier. Thus, the Board finds that the January 23, 2020, VA peripheral nerves conditions DBQ is entitled to no probative value on the issue of whether the Veteran’s peripheral neuropathy of the right lower extremity or peripheral neuropathy of the left lower extremity is related to active service. The Veteran contends that her current peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity are related to active service. The record evidence supports finding that the Veteran’s service-connected complex regional pain syndrome caused or aggravated (permanently worsened) her current peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity. The January 8, 2020, VA examiner specifically opined that the Veteran’s current peripheral neuropathy in each of the bilateral lower extremities was a progression of her service-connected complex regional pain syndrome. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In summary, and after resolving any reasonable doubt in the Veteran’s favor, the Board finds that service connection for peripheral neuropathy of the right lower extremity as due to service-connected complex regional pain syndrome of the right lower extremity and for peripheral neuropathy of the left lower extremity as due to service-connected regional pain syndrome of the left lower extremity is warranted. See 38 C.F.R. §§ 3.102, 3.310 (2019). REASONS FOR REMAND 1. Entitlement to initial ratings greater than 10 percent for a left tibial stress fracture and for a right tibial stress fracture is remanded. The Veteran contends that her service-connected bilateral tibial stress fractures are more disabling than currently (and initially) evaluated. Following the Board’s November 2019 remand, while this appeal was at the AOJ, the Veteran submitted a copy of a favorable decision by the Social Security Administration (SSA) dated in April 2020 on her appeal for Social Security Disability (SSD) benefits. A review of the record evidence shows that certain of the Veteran’s SSA records were received in October 2017 along with a February 2013 SSA decision denying her claim for SSD benefits. Submission of the April 2020 favorable decision by SSA persuasively suggests that the Veteran currently may be in receipt of SSD benefits. It does not appear that the AOJ requested the Veteran’s SSA records after she submitted a copy of the April 2020 SSA decision. The Board notes that VA has a duty to obtain SSA records when it has actual notice that the Veteran is receiving SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the AOJ must contact SSA and obtain the Veteran’s complete SSA records, including any administrative decision(s) on her application for SSA disability benefits which was adjudicated favorably in April 2020 and all underlying medical records. 2. Entitlement to a TDIU is remanded. The Veteran finally contends that her service-connected disabilities, alone or in combination, preclude her employability. The record evidence shows that she currently meets the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (2019). As discussed above, the Board granted service connection for neuropathy of the right lower extremity and for neuropathy of the left lower extremity in this decision. Because implementation of this decision by the AOJ likely will impact adjudication of the Veteran’s TDIU claim, the Board finds that these claims are inextricably intertwined. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that 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). As also discussed above, the Board remanded the Veteran’s higher initial rating claims for additional development by the AOJ. Adjudication of these claims on remand by the AOJ also may impact adjudication of the TDIU claim. Thus, adjudication of the Veteran’s TDIU claim must be deferred. The matters are REMANDED for the following action: 1. Contact the Social Security Administration (SSA) and request the Veteran’s complete SSA records related to the favorable SSA decision dated on April 7, 2020, on her claim for Social Security Disability benefits, including any administrative decision(s) on her application for SSA disability benefits and all underlying medical records. A copy of any request to SSA, and any reply, to include any records provided, should be associated with the claims file. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.