Citation Nr: 21027820 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 10-23 396 DATE: May 6, 2021 REMANDED Entitlement to a higher initial disability rating for degenerative arthritis and disc herniation of the lumbosacral spine, presently with a 10 percent evaluation prior to February 21, 2014, a 20 percent evaluation from February 21, 2014 to January 10, 2018, and a 40 percent evaluation from January 11, 2018 to the present is remanded. Eligibility for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment is remanded. REASONS FOR REMAND The Veteran served from January 1973 to January 1978. In March 2017, the Veteran and his spouse provided testimony before the undersigned Veterans Law Judge at a Board hearing held in Washington, DC. A copy of the transcript from that hearing is included in the claims file. These matters were remanded to the Agency of Original Jurisdiction (AOJ) for further development in October 2017 and in April 2020. They have since been returned to the Board for further appellate review. The Veteran has submitted, in the interim, a Motion to Advance on the Docket (AOD) and has submitted supporting medical documentation showing that he is suffering from end stage terminal disease. The Board finds the evidence submitted to show good or sufficient cause (serious illness) to advance the case on the docket, AOD on this appeal is granted, pursuant to 38 C.F.R. § 20.902(c). Unfortunately, after review, it appears remand of these matters is again required. As background, and as noted in the prior remand, pursuant to the Board's October 2017 remand instructions, the Veteran was provided with an additional VA examination pertaining to his service-connected lumbosacral spine disability in January 2018. Despite findings of decreased sensation in the right lower extremity and the Veteran's reports of urinary and bowel incontinence, the examiner stated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and did not have any other neurologic abnormality or findings related to his thoracolumbar disability. As rationale, the examiner wrote that "[s]ubjective reporting of urinary and stool incontinence is not consistent with a neurological deficit etiology" and "is more consistent with the complaint of urgency which is a urological concern and not related to compression of nerve roots in the lumbar spine." We previously noted this statement was conclusory with no rationale. In our April 2020 remand, the AOJ was directed that the Veteran's file should be sent for a supplemental medical opinion concerning the presence of any objective neurologic abnormalities associated with the Veteran's service-connected lumbosacral disability. A medical opinion was also requested regarding loss of use of the lower extremities, to enable the Board to address the claim for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment. On review, the November 2020 VA examination/medical opinion obtained pursuant to this directive is inadequate for the following reasons. With regards to the question of bilateral lower extremity radiculopathy, the examiner noted there was an abnormal nerve study suggestive of sensorimotor proximal polyneuropathy of the lower limbs (specifically identifying post tibial nerves, sural nerves, and peroneal nerves). The examiner opined that this study was not indicative of a pattern consistent with sciatic nerve radiculopathy, but more distal polyneuropathies involving the bilateral lower extremities, to include, based on the Veteran's medical history, diabetes mellitus type II, with potential for polyneuropathy, endstage renal disease, with potential for uremic neuropathy, peripheral vascular disease, with potential for caudation, potential for neurogenic claudication resulting from the lumbosacral spine, obesity and pes planus with potential for distal neuropathy due to structural/positional impingement, and bilateral plantar fasciitis. The examiner noted the bilateral lower extremity pain is complex in nature and unlikely due to a single cause, but to a variety of contributors. The examiner noted they were unable to opine, within the constraints of the encounter, with only record review, the exact nature of the Veterans bilateral lower extremity pain and to what degree of overlap these conditions contribute, but noted the spinal pathology is of lesser consequence to bilateral lower extremity pain than the overall great picture of multiple contributors from his various conditions. The examiner also noted they were unable to opine on the presence or absence of bowel or bladder incontinence, as a physical examination was not performed. Because neurological disorders, to include incontinence and radiculopathy related to the lumbar spine was neither confirmed nor ruled out with any degree of certainty, there is an inadequate basis in the record to grant or deny the benefit sought. It does not appear all possible development occurred: the prior remand directive ordered a physical examination if the opinion could not be proffered based on file review alone, and the examiner essentially expressed that physical examination could yield greater clarity. Accordingly, remand for a new VA examination on this issue is warranted. For the claim for financial assistance in the purchase of one automobile or other conveyance and/or automobile adaptive equipment, remand is also required. As previously identified, the plausible basis for granting the benefit sought with regards to this claim would be the loss of use of a foot. 38 U.S.C. § 3901; 38 C.F.R. § 3.808. The term "loss of use of a hand or foot" is defined as existing when "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance." 38 C.F.R. §§ 3.350 (a)(2). The November 2020 examination confirmed the Veteran has function of the feet so impaired that he would be equally served by amputation with prosthesis. However, whether such is related to service-connected disability remains an outstanding question. The examiner noted "multiple [non-service-connected] contributors to this Veteran's foot pain" and noted that it was unlikely that "any" of the service-connected disabilities "alone" result in his "current level" of diminished function. The medical question on appeal is (a) whether the functional limitations caused by all service-connected disabilities bring the Veteran to the threshold point where he would be equally served by amputation with prosthesis, not (b) whether any service-connected disability causes the Veteran's current level of disability. As that there could be a disability scenario that would result in an affirmative response to (a), and not to (b), the examiner's negative opinion on (b) is inadequate to address the question. It is noted that this question is otherwise intertwined with the question of whether the Veteran has service-connected radiculopathy and is appropriately deferred. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Schedule a new VA examination and medical opinion from an appropriate clinician regarding the Veteran's claim for a higher initial evaluation for his degenerative arthritis and disc herniation of the lumbosacral spine, specifically, regarding the presence (or absence) of any associated neurologic abnormalities. After examination, and considering the Veteran's lay statements and the medical evidence of record, is it as likely as not that the Veteran's service-connected lumbosacral disability has manifested in (a) radiculopathy affecting the lower extremities, (b) urinary and/or bowel incontinence, or (c) any other neurologic abnormality at any time during the relevant appeal period (March 2007 to present). In responding to the above, the clinician is asked to consider the conflicting medical opinions of record. The clinician's attention is directed to letters from the Veteran's private physicians indicating the presence of lower extremity radicular pain relating to degenerative disc disease of the lumbar spine/bilateral neural foraminal and spinal canal narrowing at L3-S1,and a notation in an October 2016 VA medical opinion that an EMG study showed radiculopathy in the lower extremities. If the Veteran has bowel and/or bladder incontinence related to his low back disability in addition to urinary urgency related to nonservice-connected disability, the examiner should so state. Any opinion offered must be supported by a complete rationale. 2. Thereafter, schedule Veteran for a new VA examination and medical opinion with an appropriate clinician to determine the severity and manifestations of his service-connected disabilities as they relate to his ability to use his feet, to include any lumbar radiculopathy symptoms confirmed on examination. NOTE: This is not specifically a request for a foot examination, but a request for a medical examination and opinion that considers all of the Veteran's service-connected disabilities that could impact his foot function. The Veteran's claims file should be made available to the examiner, and any essential tests and studies should be accomplished. Considering the evidence of record, any findings and observations made at the examination, and the Veteran's lay statements, the examiner should address to what extent the Veteran's service-connected disabilities alone affect his ability to use his feet. In responding to this inquiry, the examiner should question the Veteran in detail about his usual daily activities, and how he moves about (inside and outside the home) and address any observations and/or relevant test findings from the examination. Does the Veteran have such diminished function of either foot due to any service-connected disability or combination of service-connected disabilities that he would be equally or better served by amputation with prosthesis? The examiner should be instructed that he/she is only to consider service-connected disabilities in responding. If the examiner cannot determine whether certain functional impairment is attributable to a non-service connected, rather than service-connected disability, they should so state. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. C. KING 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.