Citation Nr: 1321642 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 09-20 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity. 2. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Barbara J. Cook, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to September 1967. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2008 decision of the RO that granted service connection for peripheral neuropathy of each lower extremity. In October 2010, the Veteran and his wife testified during a hearing before the undersigned at the RO. The Board notes that the Veteran's claims were previously remanded in March 2011. In an August 2012 decision, the Board inter alia assigned a 20 percent disability rating for the Veteran's peripheral neuropathy, lower extremities and denied the claim for TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 Order, the Court granted a Joint Motion for Remand and remanded the issues of increased ratings for peripheral neuropathy of each lower extremity and a TDIU to the Board for action consistent with the motion. The Board's denial of increased ratings for PTSD and peripheral neuropathy of each upper extremity was not disturbed. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Veteran contends that an initial rating in excess of 20 percent is warranted for his service-connected peripheral neuropathy of the lower extremities, specifically the 40 percent rate for each lower extremity as well as an award of TDIU. In May 2013, he and his representative provided additional evidence, to include a survey dated February 2013 completed by a physician concerning the Veteran's peripheral neuropathy and a vocational assessment. The physician indicated that the Veteran's peripheral neuropathy was severe. There is no strength or motor testing indicated and no indication concerning reflexes in the lower extremities. In fact, there is no information concerning objective testing whatsoever. The vocational assessment is based on two VA examinations and the February 2013 survey. There was no review of the many volumes of evidence in the claims files. The Veteran is entitled to a new VA examination when there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995). The Veteran's most recent VA peripheral neuropathy examination was conducted in May 2011, and the evidence indicates that his disability has worsened in severity. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (the Veteran is competent to provide an opinion that his disability has worsened). Therefore, the Veteran should be provided a VA examination to determine the current severity of his peripheral neuropathy, including the impact of the disorder on his employment. The Veteran should additionally be afforded an examination to determine if his service-connected disabilities result in an inability for him to obtain or maintain gainful employment. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Gainesville VA medical facility that are dated from April 2008 to present. 2. Afford the Veteran a VA examination, for evaluation of the service-connected peripheral neuropathy of each lower extremity. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the report of the examination should note review of the file. The examiner should identify all current neurological symptoms associated with the Veteran's peripheral neuropathy of each extremity. For each extremity, the examiner should specify the nerves involved; note whether there is associated atrophy or weakness; and express an opinion as to the severity of the disability (mild, moderate, moderately severe, or severe) for each nerve involved. The examiner should render specific findings as to the impact of the service-connected peripheral neuropathy of each lower extremity on the Veteran's ability to work. 3. The Veteran should be afforded a VA examination(s) by an appropriate examiner with appropriate expertise to determine the impact of the service-connected disabilities on the Veteran's employability. The examiner should note in the examination report that they are a physician. The claims files must be made available for review by the examiner(s), and the examiner(s) should note such review in the report. The examiner(s) should identify the limitations resulting from each service-connected disability and provide an opinion as to whether the Veteran's service-connected disabilities are sufficiently severe, by themselves, to render him unable to maintain any form of substantially gainful employment consistent with his education and industrial background. The rationale for all opinions expressed must also be provided. Again only service connected disorders are for consideration and age and non-service connected disorders are not for consideration. 4. Thereafter, the RO should readjudicate the Veteran's claims for higher ratings, to include consideration of his TDIU claim. If such action does not grant the benefits claimed, the RO should provide the Veteran a supplemental statement of the case and an appropriate period of time should be allowed for response. Thereafter, the case should be returned to this Board for appellate review. The Veteran 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). These claims 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). _________________________________________________ THOMAS J. DANNAHER 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).