Citation Nr: 21032786 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 16-40 130 DATE: May 28, 2021 ORDER Entitlement to service connection for sciatic neuropathy of the right lower extremity (claimed as a right leg condition), as secondary to the service-connected stress reactions of the feet and ankles, is granted. Entitlement to compensation under 38 U.S.C. § 1151 for a bad reaction to VA-prescribed medication for feet pain is denied. REMANDED Entitlement to an effective date earlier than December 16, 2015, for the grant of service connection for a separate right foot disability is remanded. Entitlement to an effective date earlier than December 16, 2015, for the grant of a separate left foot disability is remanded. Entitlement to a disability rating in excess of 10 percent for a stress reaction to the left foot since December 16, 2015, is remanded. Entitlement to a disability rating in excess of 10 percent for a stress reaction to the right foot since December 16, 2015, is remanded. Entitlement to service connection for a left leg disability, to include neuropathy, and as secondary to the service-connected disabilities, is remanded. Entitlement to a disability rating in excess of 10 percent for a stress reaction to the right ankle and foot prior to December 16, 2015, is remanded. Entitlement to a disability rating in excess of 10 percent for a stress reaction to the left ankle and foot prior to December 16, 2015, is remanded. Entitlement to a disability rating in excess of 10 percent for a stress reaction of the left ankle since December 16, 2015, is remanded. Entitlement to a disability rating in excess of 10 percent for a stress reaction of the right ankle since December 16, 2015, is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's sciatic neuropathy of the right lower extremity is proximately due to his service-connected stress reactions of the feet and ankles. 2. The preponderance of the evidence is against a finding that the Veteran has an additional disability from a bad reaction to VA-prescribed medication for his feet pain. CONCLUSIONS OF LAW 1. The criteria for service connection for sciatic neuropathy of the right lower extremity as secondary to the service-connected stress reactions of the feet and ankles are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a bad reaction to VA-prescribed medication for feet pain are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1997 to August 2000. These issues are on appeal from October 2012 and July 2016 rating decisions. In a July 2019 correspondence from his attorney, the Veteran withdrew his hearing request. In April 2020, the Board of Veterans' Appeals (Board) remanded these appeals for further development. 1. Entitlement to service connection for sciatic neuropathy of the right lower extremity (claimed as a right leg condition), as secondary to the service-connected stress reactions of the feet and ankles. The Veteran contends that he has a right leg disability that is due to his service-connected feet and/or service-connected ankles and/or service-connected lumbar spine. The October 2020 VA examination shows the Veteran has a current disability of sciatic neuropathy of the right lower extremity. The Veteran is already service connected for stress reactions of the feet and ankles. The October 2020 VA examiner opined that the Veteran currently has right sciatica due to piriformis syndrome. The examiner found the Veteran's needle electromyography (EMG) examination showed PSWs at the tibialis anterior muscle, but not at the paraspinal muscles. This finding is consistent with right sciatic due to piriformis syndrome. The examiner determined the Veteran's right piriformis syndrome is at least as likely as not proximately due to or the result of his service-connected ankle and foot disabilities. The examiner reasoned that piriformis syndrome occurs due to biomechanical and kinematic abnormalities of gait due to compensation for foot and ankle problems, and that this is well-known. There are no other secondary service connection opinions of record. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current sciatic neuropathy of the right lower extremity is proximately due to his service-connected stress reactions of the feet and ankles. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for sciatic neuropathy of the right lower extremity is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to compensation under 38 U.S.C. § 1151 for a bad reaction to VA-prescribed medication for feet pain. The Veteran contends that in the Spring of 2009, he began having a bad reaction to VA-prescribed medication he was taking for his feet pain. The VA treatment records document that the Veteran has been prescribed medication for his feet. January 2011 VA treatment records reflect the Veteran was taking medication that "apparently" caused some chest pain and that non-steroidal anti-inflammatory (NSAIDs) drugs upset his stomach. A veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after the care or treatment is rendered. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Informed consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b) of this chapter, as in emergency situations. 38 C.F.R. § 3.361(d)(1). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. See McNair v. Shinseki, 25 Vet. App. 98 (2011). VA regulations provide that informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and, anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The second prong of proximate causation requires that the veteran's additional disability or death be an event that was not reasonably foreseeable. This fact is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Finally, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Beginning with the first requisite element, the Board finds the Veteran does not have an additional disability from a bad reaction to VA-prescribed medication for his feet pain. Following an examination of the Veteran and a review of the evidence of record, the September 2020 VA examiner determined that there is a potential for NSAIDS that the Veteran used for his service-connected ankle and foot disabilities to cause symptoms of gastric irritation manifesting as stomach pain and heartburn or ischemic heart disease, which may manifest as chest pain. It is well-known that NSAIDs cause increased risks for gastric irritation, esophageal irritation, and ischemic heart conditions due to well-documented side effects of NSAIDs. The examiner stated that the Veteran used ibuprofen for his service-connected ankle and foot disabilities, and it is well-known that ibuprofen causes gastroesophageal reflux disease (GERD). The examiner opined that a reasonable health care provider would have mentioned that GERD could arise with the use of any NSAID, and that arthritis could arise as part of the natural progression of injury. The Board understands this VA opinion to mean that the Veteran currently has additional disabilities of GERD and arthritis of the lumbar spine. In this regard, the Veteran is already service connected for degenerative arthritis of the lumbar spine and GERD. As a direct grant of service connection is a greater benefit, the issue of compensation under 38 U.S.C. § 1151 for GERD and lumbar spine is considered moot and is no longer on appeal. Regarding the September 2020 VA examiner's mention of chest pain and ischemic heart disease, the evidence of record does not document any current diagnoses related to the heart or chest, to include ischemic heart disease. The Veteran does not have an additional disability related to the heart or chest, and thus has not met the first requisite element under 38 U.S.C. § 1151 for his claimed chest pain. The Board recognizes that the Veteran believes he has chest pain as a result of having a bad reaction to the VA-prescribed medication he was taking for his feet pain. However, he lacks the medical expertise to provide a competent opinion on medical matters, including a heart or chest diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Rather, the VA opinion and treatment notes are more probative evidence in this case. Accordingly, he has not demonstrated an additional heart disability, as required under the applicable regulations. Absent a finding of an additional disability, inquiry into the causation requirement is hereby rendered moot. Therefore, the preponderance of the evidence is against the appeal, the benefit-of-the-doubt rule is not for application, and entitlement to compensation under the provisions of 38 U.S.C. § 1151 is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to an effective date earlier than December 16, 2015, for the grant of service connection for a separate right foot disability is remanded. 2. Entitlement to an effective date earlier than December 16, 2015, for the grant of a separate left foot disability is remanded. 3. Entitlement to a disability rating in excess of 10 percent for a stress reaction to the left foot since December 16, 2015, is remanded. 4. Entitlement to a disability rating in excess of 10 percent for a stress reaction to the right foot since December 16, 2015, is remanded. Unfortunately, there has not been substantial compliance with the Board's April 2020 remand directives regarding the earlier effective date and increased rating claims for the feet. Upon remand, the Agency of Original Jurisdiction issued an October 2020 Supplemental Statement of the Case (SSOC) addressing the issues, instead of the requested Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Thus, the Veteran and his representative have not been afforded the opportunity to submit a Substantive Appeal (on VA Form 9) with written argument and request a Board hearing on these issues (if the Veteran so desires). Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Entitlement to service connection for a left leg disability, to include neuropathy, and as secondary to the service-connected disabilities, is remanded. The Board cannot make a fully-informed decision on the left leg issue because the September 2020 VA examiner found that the Veteran did not have a current neurological diagnosis of the left leg. However, as pointed out by the VA examiner, the Veteran has not been afforded an EMG on this leg. He has only been provided an EMG on the right leg. Additionally, at the September 2020 VA examination, the Veteran reported moderate intermittent pain and mild paresthesias and/or dysesthesias in the left lower extremity. Regarding functional impairment, the Veteran stated his walking was limited, although it was unclear if this was because of his right or left leg. This evidence suggests that the Veteran's left leg symptoms cause functional impairment. However, the VA examiner did not provide a medical opinion regarding whether the Veteran's left leg symptoms cause functional impairment, and if so, the examiner did not provide a medical opinion regarding this "disability." Upon remand, a VA addendum medical opinion must be obtained. 6. Entitlement to a disability rating in excess of 10 percent for a stress reaction to the right ankle and foot prior to December 16, 2015, is remanded. 7. Entitlement to a disability rating in excess of 10 percent for a stress reaction to the left ankle and foot prior to December 16, 2015, is remanded. 8. Entitlement to a disability rating in excess of 10 percent for a stress reaction of the left ankle since December 16, 2015, is remanded. 9. Entitlement to a disability rating in excess of 10 percent for a stress reaction of the right ankle since December 16, 2015, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding these increased rating issues. The Board remanded these issues, in pertinent part, for a VA examiner to differentiate the symptoms associated with the Veteran's service-connected ankle disabilities from those associated with the service-connected foot disabilities, and to provide an opinion regarding the neurological manifestations of the Veteran's ankles. Upon remand, a neurological examination was conducted in September 2020, but the requested medical opinions were not provided. Another remand is required to obtain an adequate VA medical opinion. Stegall, 11 Vet. App. at 271. Also, while the record contains a contemporaneous VA examination regarding the Veteran's stress reactions of the ankles, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). At the September 2020 VA examination, the VA examiner found that the Veteran had pain on dorsiflexion of both ankles during active ranges of motion; however, the examiner did not state at what degree this pain begins. Thus, this examination report is not adequate under current case law. Upon remand, another VA examination must be obtained. 10. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. The matters are REMANDED for the following actions: 1. Send the Veteran and his representative a SOC that addresses the issues of: (a) entitlement to an effective date earlier than December 16, 2015, for the grant of service connection for a separate right foot disability; (b) entitlement to an effective date earlier than December 16, 2015, for the grant of a separate left foot disability; (c) entitlement to a disability rating in excess of 10 percent for a stress reaction to the left foot since December 16, 2015; and, (d) entitlement to a disability rating in excess of 10 percent for a stress reaction to the right foot since December 16, 2015. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 2. Schedule the Veteran for a VA examination of his left leg disability, to include neuropathy. The examiner must review the claims file. An EMG must be obtained if agreed to by Veteran. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the left leg disability at least as likely as not related to service? Is the left leg disability at least as likely as not proximately due to the service-connected stress reactions of the feet? Is the left leg disability at least as likely as not proximately due to the service-connected stress reactions of the ankles? Is the left leg disability at least as likely as not proximately due to the service-connected degenerative arthritis of the lumbar spine? Is the left leg disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected stress reactions of the feet? Is the left leg disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected stress reactions of the ankles? Is the left leg disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected degenerative arthritis of the lumbar spine? If the Veteran has a current diagnosis of radiculopathy and/or neuropathy of the left leg, then the examiner should also opine whether it is at least as likely as not that the disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In providing the requested opinions, consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinions. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected stress reactions of the ankles. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If pain is noted on active and/or passive motion, the VA examiner must state at what degree the pain begins. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must differentiate the symptoms associated with the Veteran's service-connected stress reactions of the ankles from those associated with the service-connected stress reactions of the feet. If such distinction is not possible, please explain. The examiner should identify any neurological manifestations of the Veteran's stress reactions of the ankles, identify all nerve(s) involved and degree of impairment to include all symptoms and manifestations (whether the involvement is only sensory (neuralgia), or if it is characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, constant pain (neuritis), as well as a characterization of the symptoms as to whether they represent complete paralysis or incomplete paralysis. If no significant neurological impairment is found, or if it does not cause a separate functional impairment, that should be also be explained. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding neurological symptomatology, as well as VA treatment records noting neuroma. A complete rationale for any opinion expressed should be provided. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues of: (a) entitlement to service connection for a left leg disability, to include neuropathy, and to include as secondary to the service-connected disabilities; (b) entitlement to a disability rating in excess of 10 percent for a stress reaction to the right ankle and foot prior to December 16, 2015; (c) entitlement to a disability rating in excess of 10 percent for a stress reaction to the left ankle and foot prior to December 16, 2015; (d) entitlement to a disability rating in excess of 10 percent for a stress reaction of the left ankle since December 16, 2015; and, (e) entitlement to a disability rating in excess of 10 percent for a stress reaction of the right ankle since December 16, 2015, including the inextricably intertwined issue of entitlement to a TDIU. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a SSOC and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shauna M. Watkins, 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.