Citation Nr: 21021584 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 12-03 148 DATE: April 13, 2021 REMAND Entitlement to an initial disability rating in excess of 10 percent for service-connected left femur osteochondroma with excision of a lesion with scar residual (hereafter referred to as a “left femur disability”) is remanded. Entitlement to an effective date earlier than December 3, 2008, for the award of service connection for degenerative arthritis of the lumbar spine (hereafter referred to as a “low back disability”) is remanded. Entitlement to an effective date earlier than December 3, 2008, for the award of service connection for radiculopathy of the right lower extremity is remanded. Entitlement to an effective date earlier than December 3, 2008, for the award of service connection for a left knee strain is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to service-connected low back disability, is remanded. Entitlement to an initial disability rating in excess of 10 percent for service-connected plantar fasciitis of the right foot is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1966 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. To understand fully the disposition of these claims, the Board finds it helpful to reexamine their entire procedural history. The July 2009 decision on appeal granted service connection for the Veteran’s left femur disability and right foot plantar fasciitis. The former was assigned a 10 percent disability rating while the latter received a noncompensable rating; both ratings were effective December 3, 2008. With respect to the Veteran’s left femur disability, the rating was assigned based on a superficial scar that was painful on examination. The decision also denied entitlement to service connection for a sciatic nerve condition and a right leg condition. The Veteran timely appealed, in his May 2010 Notice of Disagreement (NOD), the ratings for his femur and foot and the issue of entitlement to service connection for the other two issues. In a June 2015 decision (“Decision I”), the Board remanded the claims, noting that the Veteran had not yet been scheduled for a requested hearing. In July 2015, the Veteran’s attorney withdrew the hearing request. The Board again addressed those claims in a July 2016 decision (“Decision II”). There, the Board (1) determined that an inferred claim for TDIU was raised by the record, (2) determined that an inferred claim for service connection for the Veteran’s low back disability, as secondary to service-connected left femur disability, was raised by the record, (3) split the sciatic nerve condition into two, separate issues, (4) subsumed the Veteran’s claim for a right leg condition into the claim for neuropathy of the right lower extremity, and (5) remanded all the claims as framed for additional development. In pertinent part, the Board required VA to (a) make attempts to secure private records from Dr. L.R. and the Greater Ann Arbor Neurology Associates from December 2008 to the present; (b) obtain outstanding records from the Social Security Administration (SSA); and (c) schedule the Veteran for examinations for his right foot, back, bilateral lower extremities, and left femur. In August 2016, the Board was notified that the Veteran’s SSA records previously were destroyed, and the appropriate examinations for the noted conditions were afforded in September 2016. In a May 2018 rating decision, VA awarded the Veteran a 10 percent rating for his right foot (effective December 3, 2008), as well as service connection for his low back disability, radiculopathy of the right lower extremity, and a left knee strain. VA noted that the increased rating for the right foot constituted a “full grant of benefits sought on appeal for this issue.” The low back disability and left knee strain were found to be secondary to the service-connected femur disability, and the neuropathy was secondary to the low back disability. The awards of service connection all were granted effective dates of September 13, 2016—the dates of the VA examinations for these conditions. In August 2018, the Veteran filed a NOD appealing the effective dates for the awards of service connection in the May 2018 rating decision. In December 2018, the Board took up the claims of entitlement to service connection for peripheral neuropathy of the left lower extremity, an increased rating for the left femur disability, and TDIU (“Decision III”). For the peripheral neuropathy, the Board noted that a prior September 2016 VA opinion addressed whether the Veteran’s neuropathy was related to his left femur disability but did not provide an opinion as to direct service connection. Furthermore, the records identified in Decision II had yet to be obtained. The left femur disability required an updated examination, and the issue of TDIU inextricably was intertwined. In March 2020, VA issued a rating decision whereby it changed the effective date to December 3, 2008, for the low back, right leg radiculopathy, and left knee strain disabilities. In June 2020, VA sent to the Veteran the necessary forms to authorize VA to obtain to obtain the records from Dr. L.R. and Greater Ann Arbor Neurology; the Veteran never replied. In July 2020 and January 2021, VA obtained an opinion as to the neuropathy and afforded to the Veteran an examination for his femur disability, respectively. Entitlement to an initial disability rating in excess of 10 percent for service-connected left femur disability is remanded. In December 2018, the Board remanded the Veteran’s claim for an increased rating for left femur disability to obtain a new VA examination. The examiner was asked to provide a full description of the disability and report all signs and symptoms for evaluating the Veteran’s disability under the rating criteria. The examiner was also asked to elicit information regarding flare-ups and to discuss symptoms and functional impairments as well as the effect of the disability on the Veteran’s occupational functioning and activities of daily living. On remand, the Veteran was scheduled for VA examinations for scar and left knee. The Board notes that the Veteran has been granted service connection for a left knee disability as secondary to his left femur disability and is evaluated for that disability. However, the Veteran was not provided a hip and thigh VA examination. Though the Veteran’s left femur disability is currently evaluated under Diagnostic Codes 5012-7804, all relevant rating criteria must be considered when evaluating the Veteran’s left femur disability. Given that the evidence is incomplete to make such a determination, a new VA examination is required. Entitlement to an effective date earlier than December 3, 2008, for the award of service connection for a low back disability, radiculopathy of the right lower extremity, and a left knee strain is remanded. The receipt of a NOD vests jurisdiction with the Board for purposes of ensuring that a statement of the case (SOC) is prepared on the issues contained in the NOD. Where a NOD is filed, but a SOC has not been issued, the Board must remand the claim to direct that a SOC be issued. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); 38 C.F.R. § 20.904(c). Based upon the Board’s remand, VA—on its own accord—awarded the Veteran service connection for these three issues and then set what it believed to be the proper effective date (September 13, 2016). The Veteran filed a timely NOD, challenging those effective dates. While VA since has altered its determination, changing the effective dates to December 3, 2008, that does not relieve VA of its obligation to prepare for the Veteran a SOC when he properly appealed the May 2018 decision. Whether the Veteran now wishes to continue the appeal in light of VA’s March 2020 determination is a matter entirely left to him, and VA must afford him that opportunity by preparing the necessary procedural documents so that he may perfect, if he so chooses, his appeal. As of the date of this decision, VA has not issued to the Veteran a SOC for the claims contained in his August 2, 2018, NOD. Thus, remand is required for VA to issue to the Veteran a SOC. See Manlincon, 12 Vet. App. at 240-41; 38 C.F.R. § 20.904(c). Entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to service-connected low back disability, is remanded. Remand is required for an adequate opinion regarding the Veteran’s peripheral neuropathy as it relates to his back. The July 2020 opinion for the Veteran’s left lower extremity states the following: This is a follow-up opinion on the exam dated 9-13-2016. Veteran appears to have two independent neurological issues. First, is a right lower lumbar radiculopathy (considered by VA sciatic nerve) which examiner felt was SC. Second is a sensory polyneuropathy involving the plantar surface of both feet and confirmed by EMG. VA rating deals with individual peripheral nerves and does not lend itself to description of the sensory polyneuropathies. To distinguish this condition from the symptoms secondary to lumbar radiculopathy, the closest individual nerve would be a mild, bilateral, tibial nerve condition. OPINION: Bilateral sensory polyneuropathy of the feet (described above as tibial nerve) is LESS likely as not due to service and specifically not secondary to excision of osteochondroma. RATIONALE: First, any procedure on one leg would not result in a bilateral neuropathy. Second, any injury at the level of the [V]eteran’s osteochondroma (femur) would be very unlikely to result in only mild numbness in the feet. The Board finds that remand is required. First, this examiner never was asked whether the Veteran’s neuropathy secondarily is related to his now-service-connected low back disability. Second, the opinion alludes that the Veteran’s condition could be related but does not definitively state as such. The examiner distinguishes the Veteran’s right leg radiculopathy from his bilateral sensory polyneuropathy but does not opine whether the latter condition also is caused by the Veteran’s low back disability. Thus, remand is warranted to secure a proper medical opinion. See 38 C.F.R. § 20.904(a). Because the claim must be remanded, the Veteran should be given another opportunity to identify relevant private treatment records. The Board is particularly interested in records from Dr. L.R. and Greater Ann Arbor Neurology records. Entitlement to an initial disability rating in excess of 10 percent for service-connected right plantar fasciitis is remanded. As recounted above, VA impermissibly stated that its award of an initial 10 percent disability rating constituted a full grant of benefits on appeal. That is not accurate. When VA awarded the Veteran service connection for this condition, it analogously rated him under Diagnostic Code 5276, as there then was no Diagnostic Code for plantar fasciitis. Diagnostic Code 5276 permits both a 20 and 30 percent rating for unilateral involvement of a foot. The Veteran specifically did not state that he was seeking only a 10 percent rating for his right foot and the benefit sought was therefore not granted in full. Thus, the Board has jurisdiction over the claim. Where the record does not adequately reflect the current state of a veteran’s disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Because the Veteran last was evaluated for his foot condition in September 2016—almost five years ago—the Board finds that remand for an updated examination to assess the severity of his condition is warranted. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (“We believe that fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.”). Furthermore, the Board notes that, during the pendency of this appeal, VA has amended the rating criteria for the musculoskeletal system contained in 38 C.F.R. § 4.71a. These changes take effect February 7, 2021, and cannot be applied prior to that date. Beginning that date, however, the Board will apply the rating criteria that is more favorable to the Veteran: either the old or the new criteria. 85 Fed. Reg. 76,453, 76,462, 76,469 (Nov. 30, 2020). As it pertains to this appeal, the Board notes that the changes created a new Diagnostic Code specifically for plantar fasciitis— Diagnostic Code 5285—which provides specific criteria for this condition and permits a maximum 20 percent rating for unilateral involvement. Id. at 76,464. Thus, the Veteran should be afforded the opportunity to undergo an examination that assess him under the new criteria to see if he may obtain a higher rating. Entitlement to TDIU is remanded. Because the Board herein is remanding the issues of the Veteran’s right foot rating and left femur rating, it cannot adjudicate the issue of entitlement to TDIU, as the Veteran’s full disability picture is not yet known. Thus, the issue of TDIU is said to be inextricably intertwined, requiring remand. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation); 38 C.F.R. § 20.904(a). The matters are REMANDED for the following action: 1. Issue to the Veteran a SOC for the issues of entitlement to an effective date earlier than December 3, 2008, for the award of service connection for a low back disability, radiculopathy of the right lower extremity, and left knee strain. Return the claims to the Board if, and only if, the Veteran files a timely VA Form 9. 2. Obtain any ongoing VA treatment records. 3. Contact the Veteran and provide VA Form 21-4142’s for any relevant private treatment records. The Board is particularly interested in records from Dr. L.R. and Greater Ann Arbor Neurology. 4. Obtain a VA examination concerning the Veteran’s service-connected left femur disability. The Veteran must be provided a hip and thigh examination and the claims folder must be made available for review. The examiner is asked to provide information regarding flare-ups. The examiner should identify any symptoms and functional impairments due to the left femur disability alone and the effect of the Veteran’s left femur disability on any occupational functioning and activities of daily living. 5. Obtain an addendum to the July 2020 VA opinion. The claims folder must be made available for review. The examiner must address the following: Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s service-connected low back disability (i) proximately caused or (ii) aggravated beyond natural progression his peripheral neuropathy of the left lower extremity? A detailed rationale supporting the examiner’s opinions must be provided. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 6. Afford the Veteran the opportunity to attend an examination to assess the severity of his service-connected plantar fasciitis of the right foot. All manifestations of his disability must be included. 7. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. Thereafter, return the matters to the Board if in order. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.