Citation Nr: 1306570 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 09-39 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for anesthesia of the right foot and calf, to include on an extra-schedular basis pursuant to 38 C.F.R. § 3.321(b). 2. Entitlement to a total disability based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from January 1951 to June 1957. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2008 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina, which assigned an initial 10 percent rating for anesthesia of the right foot and calf effective September 21, 1999. In a January 2011 decision, the Board denied entitlement to a higher initial evaluation for anesthesia of the right foot and calf. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2011, the Court granted a Joint Motion for Remand filed by representatives for both parties, vacating the Board's January 2011 decision and remanding the appeal to the Board for further proceedings consistent with the Joint Motion. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal. This Virtual VA claims file has been reviewed. For reasons discussed below, this appeal is REMANDED to the RO. VA will notify the appellant if further action is required. REMAND The Veteran is currently in receipt of a 10 percent evaluation for anesthesia of the right foot and calf. A November 2008 rating decision reflects that the RO concluded that the diagnosed disorder is not specifically listed in the rating schedule, and rated the disorder as analogous to neuralgia of the sciatic nerve. 38 C.F.R. §§ 4.20, 4.124a, Diagnostic Code 8720 (2012). The Veteran's 10 percent rating contemplates mild symptoms; he asserts that a higher evaluation is warranted. The Veteran has submitted a November 2012 private report of examination which opines that his foot and calf disorder is manifested by "moderately-severe to severe incomplete paralysis with marked muscular atrophy in the lower extremities." While the examiner states that "these deficits have progressed over time due to the degenerative state of (the appellant's) lumbar spine," and while the appellant is not service connected for a lumbar disorder, this evidence still raises the question whether there has been an increase in the severity of the Veteran's service connected disability since his last VA examination in May 2010. Thus, a contemporaneous VA examination is appropriate prior to a final adjudication of the Veteran's current claim for increase. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Additional examination is also necessary to clarify which peripheral nerve best describes the Veteran's service-connected disability picture throughout this appeal. As noted above, his disability has been rated as analogous to sciatic nerve impairment, which contemplates symptoms such as foot dangle/drop and weakened flexion of the knee. A May 2010 VA examination report does not report any abnormality of the knee, but reflects the Veteran had no dorsiflexion in his right foot/ankle; there was also diminished light touch below the knee. A review of the rating criteria for peripheral nerves reveals that the external popliteal nerve (common peroneal) is evaluated, in part, on symptoms including an inability to dorsiflex and anesthesia of the foot and toes. See 38 C.F.R. § 4.124a, Diagnostic Codes 8521, 8621, and 8721. Absent some discussion as to whether the Veteran's lost dorsiflexion is part of his service-connected disability picture, further development regarding this issue is warranted. Finally, based on various statements contained in the file, and, in particular, the February 2013 written brief submitted by the Veteran's attorney, it is apparent that the Veteran has raised the issue of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is 'part of,' and not separate from, a claim of entitlement to an increased rating. Id. at 453. While this issue has yet to be certified for appeal, let alone initially addressed by the RO, in light of the binding precedent set forth in Rice, the Board is compelled to remand this issue. The Board similarly finds that the Veteran, via his representative, has raised the issue of whether he is entitled to a higher evaluation for service-connected anesthesia of the right foot and calf on an extra-schedular basis. See 38 C.F.R. § 3.321(b) (2012). As the RO has not explicitly considered 38 C.F.R. § 3.321(b) in any of its prior adjudications, to avoid any prejudice to the Veteran, it should consider this matter, on remand, in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, in light of the aforementioned, the case is REMANDED for the following action: 1. Any pertinent VA or non-VA treatment records, subsequent to January 2011 should be obtained and incorporated in the claims file. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the RO should schedule the Veteran for a VA peripheral nerve examination to assess the current severity of his right foot and calf disability. Access to the claims file, Virtual VA and a copy of this remand must be made available to the examiner for review. In accordance with the latest worksheet for rating lower extremity peripheral nerves, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his anesthesia of the right foot and calf. The examiner must identify with specificity which peripheral nerve(s) are involved in the Veteran's disability (i.e., the sciatic nerve, the common peroneal nerve, etc.), and must provide an opinion concerning the degree of paralysis, if any, that is found, stating specifically whether the Veteran's foot or toes are paralyzed. If the paralysis is found to be incomplete, the physician examiner must opine whether the paralysis is mild, moderate, moderately severe, or severe. The examiner must carefully distinguish and differentiate any pathology caused by the Veteran's service connected right foot and calf anesthesia that is associated with residuals of a laceration of the distal third of the left leg, status post Achilles tendon cuff repair and left foot navicular fracture from pathology caused by his nonservice connected lumbar degenerative joint disease. A complete rationale for all opinions expressed must be provided. 3. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. The RO must ensure that the examiner documented his or her consideration of Virtual VA. If any report is deficient in any manner, the RO must implement corrective procedures at once. 4. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO is to readjudicate the issue on appeal. The issues of entitlement to an extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b) and entitlement to a total disability evaluation based on individual unemployability (to include under 38 C.F.R. § 4.16(b)) must be specifically adjudicated. All applicable laws, regulations, and theories of entitlement should also be considered. If any benefit sought on appeal remains denied, the appellant and his representative, if any, should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).