Citation Nr: 22014946 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 15-02 284 DATE: March 15, 2022 ORDER New and material evidence having been received, the claim for service connection for a left knee strain is reopened, and, to that extent only, the appeal is granted. Entitlement to an initial rating of 20 percent, but no higher, for right lower extremity radiculopathy of the femoral nerve is granted, subject to the laws and regulations governing monetary benefits. Entitlement to an initial rating of 20 percent, but no higher, for left lower extremity radiculopathy of the femoral nerve is granted, subject to the laws and regulations governing monetary benefits. REMANDED Entitlement to service connection for a left knee strain, as secondary to service-connected disabilities, is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee strain is remanded. Entitlement to an initial rating in excess of 20 percent for a lumbosacral strain with degenerative joint disease (DJD) is remanded. Prior to September 26, 2014, entitlement to an initial rating in excess of 30 percent for arthritis of the right hip, status post total hip replacement, (right hip disability) is remanded. From September 26, 2014, entitlement to a disability rating in excess of 70 percent for a right hip disability is remanded. From April 25, 2017, entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy of the femoral nerve is remanded. From April 25, 2017, entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy of the femoral nerve is remanded. Entitlement to an initial disability rating in excess of 10 percent for surgical scar, right hip, is remanded. Entitlement to an initial compensable rating (higher than 0 percent) for scars, residuals of bilateral hip replacements, is remanded. From August 13, 2018, entitlement to a compensable disability rating for scar, residual of total right hip replacement, is remanded. From August 13, 2018, entitlement to a compensable disability rating for scar, residual of total left hip replacement, is remanded. FINDINGS OF FACT 1. An April 2009 Board decision denied the Veteran's claim of entitlement to service connection for a left knee strain. 2. Evidence associated with the claims file after the final denial in April 2009 is not cumulative or redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claim. 3. The Veteran's right lower extremity radiculopathy has been characterized as moderate incomplete paralysis of the femoral nerve. It has not been characterized as severe incomplete paralysis. 4. The Veteran's left lower extremity radiculopathy has been characterized as moderate incomplete paralysis of the femoral nerve. It has not been characterized as severe incomplete paralysis. CONCLUSIONS OF LAW 1. The April 2009 Board decision is final. 38 U.S.C. §§ 5103, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100 (2021). 2. Evidence received since the April 2009 Board decision is new and material and the claim for service connection for a left knee strain is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2021). 3. The criteria have been met for an initial disability rating of 20 percent for right lower extremity radiculopathy of the femoral nerve. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8526 (2021). 4. The criteria have been met for an initial disability rating of 20 percent for left lower extremity radiculopathy of the femoral nerve. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8526 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2012, and May 2017 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). In October 2012 and May 2018, the Veteran disagreed with these rating decisions. In the October 2014 rating decision, the RO increased the Veteran's right hip disability from 30 percent to 70 percent, effective September 26, 2014. Additionally, the RO decreased the Veteran's surgical scar, right hip, from 10 percent to a noncompensable rating (0 percent). In a March 2020 rating decision, the RO increased the Veteran's surgical scar, right hip, back to10 percent, effective March 31, 2004, the date of his original claim, and also granted separate noncompensable ratings for scars on his bilateral hips, left hip scar, and right hip scar. As these do not constitute full grants, these issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Additionally, during the period of the appeal, in a March 2020 rating decision, the RO granted service connection for a left hip disability and for a total disability rating based on individual unemployability (TDIU). Therefore, those claims have been resolved and are no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). In an April 2020 Third Party Correspondence, the Veteran's attorney requested a copy of the Veteran's May 2019 VA examination report for hips. In a June 2020 Third Party Correspondence, the Veteran's attorney notified the RO that he was withdrawing his representation. Additionally, in the last line, the attorney wrote that "the Veteran's matters before the Board have also been withdrawn." Concerning the withdrawal of the Veteran's claims, the Board has determined that the Veteran's attorney did NOT "explicitly, unambiguously, and with a full understanding of the consequences" withdrew the claims on appeal. Because of this, the Board has not withdrawn the appeals. In a November 2021 letter, the Board sent the Veteran a clarification letter, asking him if he wished to withdraw all his appeals. The Veteran had 30 days to respond whether he wished to withdraw his appeals. No response was received from the Veteran. Because of this, the Board will proceed with the adjudication and review of all issues on appeal. Concerning the attorney's withdrawal, the Board finds that the withdrawal of representation is invalid. Under 38 C.F.R. § 20.6(a)(2), after an appeal to the Board of Veteran's Appeals has been filed, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. Good cause for such purposes is the extended illness or incapacitation of an agent admitted to practice... failure of the appellant to cooperate with proper preparation and presentation of the appeal, or other factors which make the continuation of representation impossible, impractical, or unethical. 38 C.F.R. § 20.6(a)(2). The Board notes that the most recent VA Form 8 Certification of Appeal is dated May 2020, this is before the Veteran's attorney requested to withdraw as representative in June 2020. Because the Veteran's attorney failed to show good cause for his withdrawal, the withdrawal is denied. Id. Finally, concerning the request for the Veteran's most recent May 2019 VA examination report for hips, in an October 2021 Report of Contact, the Veteran noted that the documents were no longer needed. Because of this, the Board is free to adjudicate all the issues on appeal. New and Material Evidence New and material evidence having been received, the claim for service connection for a left knee strain is reopened. Legal Criteria Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase "raises a reasonable possibility of substantiating the claim" enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Analysis In this case, service connection for a left knee strain was denied in an April 2009 Board decision. That rating decision was not appealed nor was new and material evidence received within the appeal period. 38 U.S.C. §§ 5103, 7105; 38 C.F.R. §§ 3.104, 20.1100. Evidence received since that decision includes an April 2017 VA examination report. In the April 2017 opinion, the VA examiner wrote that the Veteran's left knee condition could be caused by his left hip. At the time of this opinion, the Veteran was not service connected for his left hip. The Board notes that in a March 2020 rating decision, the Veteran was granted service connection for his left hip disability. This evidence is new to the record, relates to previously unestablished facts to support the claim, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened, and any deficiencies of notification and development in this case will be addressed on remand. Increased Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. 1. Entitlement to an initial rating of 20 percent, for right lower extremity radiculopathy is granted. 2. Entitlement to an initial rating of 20 percent, for left lower extremity radiculopathy is granted. As there is considerable overlap in the applicable evidence for the Veteran's claims, the Board will discuss them together. Legal Criteria Under DC 8526 for paralysis of the anterior crural (femoral) nerve, a 10 percent rating is warranted for mild incomplete paralysis. 38 C.F.R. § 4.124a, DC 8526. A 20 percent rating is warranted for moderate incomplete paralysis. Id. A 30 percent rating is warranted for severe incomplete paralysis. Id. The maximum 40 percent rating is warranted for complete paralysis of the femoral nerve, paralysis of quadriceps extensor muscles. Id. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence. 38 C.F.R. § 4.6. Factual Background In an April 2017 VA examination report for the back, the VA examiner noted that the Veteran had radiculopathy symptoms. The Veteran had no constant pain in either lower extremity, moderate intermittent pain in both lower extremities, moderate paresthesias and/or dysesthesias in both lower extremities, and moderate numbness in both lower extremities. The examiner reported that the Veteran's L2/L3/L4 nerve roots (femoral nerve) was affected bilateral and characterized the severity of the Veteran's radiculopathy as moderate bilaterally. The Board notes that throughout the appeal period, the Veteran received medical treatment for his radiculopathy symptoms. These treatment reports did not measure the severity of his radiculopathy and did not evaluate the nature, extent, and severity during the appeal period. Analysis Based on the above evidence, the Board concludes that the Veteran's right and left lower extremity radiculopathy of the femoral nerves more closely approximates "moderate" incomplete paralysis. 38 C.F.R. § 4.124a, DC 8526. Because of this, initial ratings of 20 percent for both lower extremities are warranted. In the April 2017 VA examination report, the examiner characterized the Veteran's bilateral lower extremity radiculopathy as "moderate." At no time during the appeal period has the Veteran's lower extremity radiculopathy symptoms more closely approximated "severe" incomplete paralysis. Id. Rather, his symptoms have been described as a moderate, and this is reflected in his initial 20 percent ratings. Id. The Board notes that there is only one VA examination that measured the severity of the Veteran's bilateral lower extremity radiculopathy symptoms. Because of this, the issues of entitlement to ratings in excess of 20 percent from April 25, 2017, the date of the Veteran's VA examination, are being remanded and will be discussed below. Neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Additionally, the Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, in a March 2020 rating decision, the Veteran was granted a TDIU rating. The Board is sympathetic to the Veteran's reports and understands that his right and left lower extremity radiculopathy have significant effects on his daily life. However, these disabilities more nearly approximate the now assigned ratings and do not warrant higher increases at this time. REASONS FOR REMAND 1. Entitlement to service connection for a left knee strain, as secondary to service-connected disabilities, is remanded. In an April 2017 VA examination report, the Veteran was diagnosed with a left knee strain. The examiner opined that it was less likely than not that the claimed condition was proximately due to, or the result of, the Veteran's service connected condition. The rationale was that after reviewing the Veteran's medical records, taking a medical history, and performing a physical examination of the Veteran, the examiner determined that the Veteran's left knee condition was not the result of arthritis, right hip, status post total hip replacement. The examiner noted that although the Veteran had a total hip replacement on the right side, it would not have affected the opposite side knee. The examiner explained that left hip arthritis or hip replacement could affect the left knee due to alignment changes. The Board notes that at the time of this opinion, the Veteran was only service connected for his right hip. However, in a March 2020 rating decision, the Veteran was granted service connection for his left hip as well. Because the VA examiner noted that the Veteran's left hip arthritis or hip replacement could affect the left knee due to alignment changes, a new VA opinion is necessary to determine whether the Veteran's left knee strain was proximately due to or the result of his now-service-connected left hip replacement. 2. Entitlement to an initial rating in excess of 10 percent for a right knee strain is remanded. 3. Entitlement to an initial rating in excess of 20 percent for a lumbosacral strain with degenerative joint disease (DJD) is remanded. In his November 2019 VA Form 9, the Veteran wrote that his right knee and back conditions had worsened since his last VA examinations in April 2017. Because of this, a remand is necessary to determine the current severity of the Veteran's right knee and back disabilities. 4. Prior to September 26, 2014, entitlement to an initial rating in excess of 30 percent for a right hip disability is remanded. 5. From September 26, 2014, entitlement to a disability rating in excess of 70 percent for a right hip disability is remanded. The Board notes that the Veteran had VA examinations to evaluate his service connected right hip disability in July 2010, September 2014, June 2015, and most recently in May 2019. However, all of these examination reports violate the requirements of Correia v. McDonald and Sharp v. Shulkin, to one degree or another. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Because of this, a new VA examination is necessary to determine the current severity of the Veteran's right hip disability. 6. From April 25, 2017, entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy of the femoral nerve is remanded. 7. From April 25, 2017, entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy of the femoral nerve is remanded. The Board notes that in this decision, the Veteran's bilateral lower extremity radiculopathy disabilities were granted initial ratings of 20 percent. However, the Veteran has only had one VA examination in April 2017 to evaluate these disabilities. In his November 2019 VA Form 9, the Veteran wrote that his back had worsened since his last VA examination. The Board notes that a favorable decision on the claim for an increased rating for the Veteran's service-connected back disability could impact his bilateral lower extremity radiculopathy. Because of this, the Board finds that these issues are inextricably intertwined. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (en banc). A new VA examination is necessary to determine the current severity of the Veteran's right and left lower extremity radiculopathy of the femoral nerves. 8. Entitlement to an initial disability rating in excess of 10 percent for surgical scar, right hip, is remanded. 9. Entitlement to an initial compensable rating (higher than 0 percent) for scars, residuals of bilateral hip replacements, is remanded. 10. From August 13, 2018, entitlement to a compensable disability rating for scar, residual of total right hip replacement, is remanded. 11. From August 13, 2018, entitlement to a compensable disability rating for scar, residual of total left hip replacement, is remanded. In the most recent March 2020 rating decision, the RO restored the Veteran's 10 percent rating for his surgical scar, right hip, because they said it was painful. In that rating decision, the RO also granted service connection for scars, residuals of bilateral hip replacements, rated as noncompensable (0 percent) from March 31, 2004 to August 13, 2018. From August 13, 2018, the RO granted separate noncompensable ratings for scar, residual of total right hip replacement, and scar, residual of total left hip replacement. However, in the most recent May 2019 VA examination report, the VA examiner noted that the Veteran only had two scars, one located on the right hip area, and one located on the left hip area. The Board is unclear how the Veteran can have both a 10 percent rating for his surgical scar, right hip, but then also have a noncompensable rating for his scar, residual of total right hip replacement. Because of this, a new VA examination is necessary to determine how many scars the Veteran has, where they are located, and whether they are painful, unstable, or warrant a compensable rating. The matters are REMANDED for the following actions: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning these claims. 3. Arrange for the Veteran's file to be forwarded to a VA examiner for clarifying addendum opinion regarding the likely cause of the Veteran's left knee condition. The examiner or consulting physician must review the entire record (including all updated records obtained pursuant to the above development order). Another examination should not be scheduled unless deemed necessary by the examiner. Based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's left knee condition is either directly related to active military service, represents the initial manifestation of his disease, or was proximately due to or aggravated by his service-connected disabilities, to include his now-service-connected left hip disability. In reaching any conclusion the examiner is asked to consider, and address, the April 2017 VA opinion where the examiner wrote that the Veteran's left knee condition could have been caused by his left hip. 4. Schedule the Veteran for VA examinations to determine the current severity of his service-connected right knee, back, and right hip disabilities. The claims file must be made available to the examiner for review in connection with the examinations. All indicated tests and studies must be performed in accordance with the pertinent Disability Benefits Questionnaires for this disability, and all findings should be set forth in detail. The examiner should identify all complications and symptoms attributable to the Veteran's service-connected disabilities in accordance with the rating criteria. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing and must include range of motion measurements in active motion, passive motion, with weight-bearing, and without weight-bearing unless such testing is not practicable or feasible. If such testing is not practicable or feasible, the examiner should explain why this is so. To comply with Sharp v. Shulkin, 29 Vet. App. 26, (2017), the examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares ups or repetitive use, and if so, the examiner must estimate range of motion during flare ups or repetitive use. If the examination does not take place during a flare up or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flare ups or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In opining, base your estimate on information procured from relevant sources, including the lay statements the Veteran provides after she is asked to describe functional limitation. If you cannot opine without resorting to speculation, state whether that is because of a lack of knowledge among the medical community at large OR because you, and you alone, have insufficient knowledge to so opine. 5. Schedule the Veteran for a VA examination to determine the number of scars the Veteran has related to his service-connected hip disabilities and the current severity of any scars found. The claims file must be made available to the examiner for review in connection with the examination. All indicated tests and studies must be performed in accordance with the pertinent Disability Benefits Questionnaires for these disabilities, and all findings should be set forth in detail. The examiner should identify all complications and symptoms attributable to the Veteran's service-connected scars. (Continued on next page) 6. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). M. YACOUB Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.