Citation Nr: 21028074 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-09 027 DATE: May 10, 2021 REMANDED Entitlement to a noninitial disability rating in excess of 10 percent for the Veteran's service-connected neuropathy of the left peroneal nerve is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to May 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at an August 2019 Board videoconference hearing. A copy of the hearing transcript has been associated with the electronic claims file. 1. Entitlement to a noninitial disability rating in excess of 10 percent for the Veteran's service-connected neuropathy of the left peroneal nerve is remanded. The Veteran contends that his service-connected neuropathy of the left peroneal nerve is worse than what is reflected by his current 10 percent disability rating. The Board notes that he last underwent a VA examination evaluating the severity of his left peroneal nerve in February 2017. The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence which addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). At the August 2019 Board videoconference hearing, the Veteran testified regarding a subjective worsening of the neuropathy affecting his left peroneal nerve. He indicated that he experienced increased numbness, limitation of motion, and instability in the left leg, resulting in increased falling. He also indicated that he used a left knee brace and a left ankle brace. When questioned whether his condition had worsened since the February 2017 VA examination, the Veteran responded that his condition is "significantly worse." Therefore, as the Veteran last underwent a VA examination for neuropathy affecting his left peroneal nerve more than four years ago, and he has suggested his symptoms have worsened, he should be afforded a VA examination to assess the current nature, extent, and severity of his service-connected neuropathy of the left peroneal nerve. 2. Entitlement to service connection for left lower extremity radiculopathy is remanded. The Veteran seeks entitlement to service connection for left lower extremity radiculopathy that he believes is secondary to his service-connected residuals of lumbar strain. The medical evidence is clear that the Veteran has experienced a left lower extremity radiculopathy during the appellate period, that is separate and distinct from his service-connected neuropathy affecting the left peroneal nerve. At the August 2014 VA examination, the Veteran was assessed with left lower extremity radiculopathy affecting the sciatic nerve. In a September 2014 addendum VA medical opinion, a VA examiner stated that this was a separate diagnosis unrelated to the Veteran's service-connected neuropathy of the left peroneal nerve. At the July 2016 VA examination, the Veteran was again diagnosed with left lower extremity radiculopathy affecting the sciatic nerve. Thus, a current disability has been established. The Veteran was denied service connection for left lower extremity radiculopathy based on VA medical opinions indicating that the Veteran's left lower extremity radiculopathy was caused by his nonservice-connected degenerative arthritis of the lumbar spine and not his service-connected residuals of lumbar strain. However, the issue of whether the Veteran's degenerative arthritis of the lumbar spine is proximately due to or aggravated by the Veteran's service-connected lumbar strain residuals has not been fully developed in the record. Following the assessment of left lower extremity radiculopathy at the August 2014 VA examination, addendum VA medical opinions were obtained in September 2014 and December 2014. In the September 2014 addendum opinion, a VA examiner opined that the Veteran clearly had a lumbar strain during his service and the Veteran's current degenerative arthritis of the lumbar spine was a new and separate condition that was not a progression of the Veteran's service-connected residuals of lumbar strain. The VA examiner stated that lumbar strain was not specifically known to cause degenerative arthritis of the spine, but he did not explain this statement further, and he did not address the aggravation prong of a secondary service connection claim. See 38 C.F.R. § 3.310. In the December 2014 addendum opinion, a different VA examiner opined that all of the symptoms in the Veteran's back were attributed to degenerative arthritis of the lumbar spine because lumbar strains are acute conditions and the use of a back brace for treatment was more consistent with degenerative arthritis of the lumbar spine. The December 2014 VA examiner then opined that all radiculopathy symptoms and diagnoses are more likely than not due to degenerative arthritis of the lumbar spine because soft tissue injuries such as strains do not cause radiculopathy and/or nerve compression. The Veteran was afforded an additional VA examination in July 2016, where he was again diagnosed with left lower extremity radiculopathy. This VA examiner opined that the Veteran's radiculopathy was caused by degenerative disease of the lumbar spine and not from a lumbar strain. The VA examiner explained that a strain of the back does not progress to arthritis and radiculopathy, as these latter conditions are more consistent with age-related problems. However, the VA examiner did not specifically discuss whether the Veteran's degenerative arthritis of the lumbar spine was proximately due to or aggravated by the Veteran's service-connected lumbar strain residuals. 38 C.F.R. § 3.310. The VA examiner also opined that the Veteran's left lower extremity radiculopathy was not aggravated beyond normal by the Veteran's service-connected residuals of lumbar strain because a strain is a muscle condition and does not affect the nerves to the leg. The VA examiner stated that he could not differentiate the Veteran's low back pain as being due to the Veteran's lumbar strain or his lumbar degenerative arthritis, as the symptoms for the two conditions were similar in nature. As the record currently stands, the VA examiners have most consistently attributed the Veteran's left lower extremity radiculopathy to the Veteran's nonservice-connected degenerative arthritis of the lumbar spine, as opposed to the Veteran's service-connected lumbar strain. Nonetheless, the VA examiners have not sufficiently explained whether the Veteran's current degenerative arthritis of the lumbar spine is proximately due to, the result of, or aggravated by the Veteran's service-connected residuals of lumbar strain under 38 C.F.R. § 3.310. Accordingly, a remand is warranted for a VA medical opinion that addresses this inquiry. 3. Entitlement to service connection for right lower extremity radiculopathy is remanded. At the August 2014, July 2016, and February 2017 VA examinations, the Veteran did not exhibit signs or symptoms consistent with right lower extremity radiculopathy. However, recent VA treatment records from July 2020 document the Veteran's lay reports of numbness in the right leg down to his thigh slightly above the knee. Given this report, an updated VA examination should be scheduled to determine whether the Veteran's reported symptoms constitute a clinical neurological disability, and if so, whether it is secondary to a service-connected disability. Lastly, the RO is requested to obtain updated VA treatment records from August 2020, if such evidence exists. 38 C.F.R. § 3.159(c)(2) and (3). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2020 to the present, if such evidence exists. 2. Schedule the Veteran for a VA neurological examination to assess the nature and severity of the Veteran's service-connected neuropathy of the left peroneal nerve and whether the Veteran experiences right lower extremity radiculopathy. Following an in-person assessment and complete review of the electronic claims file, including a copy of this remand, the VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current degenerative arthritis of the lumbar spine is proximately due to, the result of, or aggravated (underwent any incremental increase in disability, regardless of its permanence) by the Veteran's service-connected residuals of lumbar strain? (b.) Is it at least as likely as not that the Veteran's left lower extremity radiculopathy (and right lower extremity radiculopathy, if present) is/are proximately due to, the result of, or aggravated (underwent any incremental increase in disability, regardless of its permanence) by the Veteran's degenerative arthritis of the lumbar spine? (c.) Is it at least as likely as not that the Veteran's left lower extremity radiculopathy (and right lower extremity radiculopathy, if present) is/are proximately due to, the result of, or aggravated (underwent any incremental increase in disability, regardless of its permanence) by the Veteran's service-connected residuals of lumbar strain? The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante 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.