Citation Nr: 1329476 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-25 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for right lower extremity peripheral neuropathy, as radiculopathy, to include as secondary to service-connected degenerative disc disease of the lumbar spine. 2. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: Marine Corps League WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from January 1985 to May 1985 and from October 1986 to December 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In February 2012, the Veteran testified at a hearing before a Decision Review Officer (DRO) with regards to his claim for service connection for right lower extremity peripheral neuropathy. A written transcript has been associated with the claims file. In September 2012, the Board remanded the instant matters and it now returns for further appellate consideration. As will be discussed further herein, the Board is satisfied that the agency of original jurisdiction (AOJ) has substantially complied with the remand directives and the Board may proceed with review of the issue of entitlement to an increased rating for a lumbar spine disorder. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 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 claims. A review of the Veteran's Virtual VA claims file reveals VA treatment records dated through March 2013; such records were considered by the AOJ in the May 2013 supplemental statement of the case (SSOC). As a final preliminary matter, the Board notes that the Veteran submitted additional argument in support of his claim for service connection for right lower extremity peripheral neuropathy, as well as an April 2013 VA electrodiagnostic report, after the issuance of the most recent May 2013 SSOC. Such evidence and argument was submitted without a waiver of AOJ consideration. See 38 C.F.R. § 20.1304(c) (2012). However, as the Veteran's claim for service connection is being remanded, and the additional evidence is not relevant to the claim for an increased rating, the AOJ will have an opportunity to review all the newly associated documents such that no prejudice results to him in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The issue of entitlement to an increased rating for a lumbar spine disorder is addressed below. The remaining claim for service connection for right lower extremity peripheral neuropathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim decided herein have been accomplished. 2. Since the August 2007 claim for an increased rating, the Veteran's lumbar spine degenerative disc disease has resulted in reduced range of motion that includes forward thoracolumbar flexion to no less than 35 degrees, but has not been productive of ankylosis of the spine; any separately ratable neurological manifestation(s), other than left leg radiculopathy (for which a separate rating has been assigned) or claimed right leg radiculopathy (which remains on appeal), such as bowel or bladder impairments, or any period(s) of incapacitation as defined by VA regulations. 3. At no point pertinent to this appeal has the Veteran's degenerative disc disease of the lumbar spine been shown to be so exceptional or unusual as to render inadequate the schedular criteria for rating the disability. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for degenerative disc disease of the lumbar spine are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, and Formula for Rating Intervertebral Disc Disease on the Basis of Incapacitating Episodes (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 - 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A January 2008 pre-rating letter provided pertinent notice to the Veteran in connection with his claim for an increased rating. This letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. After the February 2008 rating decision, and the Veteran's disagreement with the assigned rating, the June 2009 statement of the case (SOC) set forth the criteria for higher ratings for lumbar spine disability, to include the General Formula for Diseases and Injuries of the Spine (the timing and form of which suffices for Dingess/Hartman). An April 2009 letter also provided the relevant rating criteria. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA outpatient records, various private treatment records and reports of VA examinations. In an October 2012 letter, the RO requested that the Veteran complete an appropriate authorization form for each private treatment provider who had treated him for his back condition, as instructed by the Board in its September 2012 remand. The Veteran was also afforded a VA examination, which he attended. See Stegall, supra (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); see also D'Aries, supra; Dyment, supra. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and his representative on his behalf. The Board also finds that no additional RO action to further develop the record in connection with the claim for higher rating, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the Veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with either claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Higher Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover, consideration of the appropriateness of 'staged rating' (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. At the outset, the Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's service-connected lumbar spine degenerative disc disease is rated based on consideration of the rating criteria for a lumbosacral sprain (Diagnostic Code 5237). The General Rating Formula for Diseases and Injuries of the Spine sets forth the criteria for rating spine disabilities on the basis of limitation of motion and other factors. Under the formula, a 20 percent rating is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, the combined range of motion of the thoracolumbar spine was not greater than 120 degrees or that muscle spasms or guarding were severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. The noted criteria apply with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease. Alternatively, the Board has also considered the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Under that formula, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). The relevant evidence in the record includes the Veteran's VA and private treatment records, as well as reports of VA examinations conducted in October 2008 and May 2013. For the entire appellate period, the record establishes that the Veteran's thoracolumbar flexion was limited to 35 degrees, at worst, without ankylosis. Collectively, these symptoms have resulted in no more impairment than that contemplated in the assigned 20 percent rating. A March 2007 VA treatment note reflected the Veteran's reports of back spasms without bowel or bladder incontinence. Physical examination revealed tight muscles with tenderness to palpation over the lower back bilaterally. An August 2007 VA treatment note indicated that the Veteran was found to have moderate paraspinal tenderness, with right greater than left. Lumbar flexion was found to be 40 degrees while extension was found to 15 degrees, with more pain on extension than flexion; no other range of motion measurements were provided. An October 2008 VA examination report reflected the Veteran's complaints of constant dull and intermittent sharp pain in his low back, which he rated as "8/10". Flare-ups were reported to occur with bending, lifting or overuse, improve with rest and medication, occur on a bi-monthly basis and can last for two to three days. According to the Veteran, these flare-ups severely limited his range of motion due to pain. He further reported suffering approximately 30 incapacitating episodes of low back pain in the past year, each lasting between one and three hours. Physical examination conducted in October 2008 found diffuse tenderness to palpation over the lower lumbar spine, right and left sacroiliac joints, right and left sciatic notches and adjacent right and left paraspinal muscles without palpable spasms. Forward flexion was from zero degrees to 90 degrees with pain beginning at 45 degrees, extension was from zero degrees to 30 degrees with pain beginning at 10 degrees, right lateral flexion (bending) was from zero degrees to 20 degrees with pain beginning at 10 degrees, left lateral flexion (bending) was from zero degrees to 30 degrees with pain beginning at 10 degrees and bilateral lateral rotation was from zero degrees to 20 degrees with pain beginning at 10 degrees. Repetitive motion testing revealed no change in range of motion. An accompanying X- ray revealed degenerative disc disease. During a February 2012 hearing, the Veteran testified that he experienced excruciating back pain. The Veteran's wife testified that he suffered from flare-ups that required him to be in bed from one to three days A May 2013 VA examination report reflected the Veteran's reports of pain to both sides of the lower back as well as flare-ups that occurred every seven to 10 days and required him to be bedridden. He reported that he had been bedridden for approximately 30 days over the past year and that his range of motion was very limited during such episodes. Physical examination revealed tenderness to the lower back without guarding. Forward flexion was to 35 degrees without pain, extension was to 20 degrees with pain beginning at 20 degrees, right lateral flexion was to 30 degrees without pain, left lateral flexion was to 25 degrees with pain beginning at 20 degrees, right lateral rotation was to 30 degrees without pain and left lateral rotation was to 30 degrees without pain but with complaints of stiffness beginning at 30 degrees. Repetitive motion testing did not reveal any additional limitation of motion. No neurologic abnormalities or findings related to the thoracolumbar spine such as bowel or bladder problems were found. Although the Veteran was found to suffer from IVDS, there were no incapacitating episodes over the past 12 months as defined by VA regulations. As indicated above, thoracolumbar range of motion testing conducted has demonstrated some loss of thoracolumbar motion but has not reflected forward flexion that is limited to 30 degrees or less or, as required for the next higher rating under the General Rating Formula. As noted above, range of motion testing conducted in the October 2008 VA examination revealed lumbar flexion to be 90 degrees while a May 2013 VA examination revealed such motion to be 35 degrees. In addition, an August 2007 VA treatment note found forward flexion to be 40 degrees. As indicated, VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with criteria under the General Rating Formula for the spine. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7. In this regard, the Board recognizes that during the VA examinations, no additional limitation of motion was found following repetitive motion, despite the Veteran's subjective reports of pain on some ranges of motion. Accordingly, even after taking the factors identified in DeLuca into consideration, the Board finds a disability rating in excess of 20 percent cannot be granted, under the General Rating Formula, on the basis of restricted thoracolumbar motion. Moreover, the post-service radiological lumbar spine studies, private and VA outpatient treatment notes and VA examination reports simply do not reflect objective findings of ankylosis in the spine, or any suggestion that the Veteran effectively experiences ankylosis of the spine. The Board also has considered whether combining ratings for orthopedic and neurological manifestations of lumbar spine disability would result in a higher rating, pursuant to Note (1) of the General Rating Formula. However, there is no evidence of any separately ratable neurological manifestation(s) other than the left leg radiculopathy for which a separate rating has been assigned-10 percent from October 8, 2008. In addition, the issue of right leg radiculopathy is currently on appeal and is addressed in the remand section below. The Veteran has consistently denied bladder or bowel impairments and none were found on examination. As such, Note 1 provides no basis for any higher rating at any point pertinent to this appeal. The Board further finds that the Formula for Rating IVDS likewise provides no basis for assignment of any higher rating. Although disc problems have been noted in the post- service clinical evidence and the Veteran has been found to suffer from IVDS, the Veteran's lumbar spine degenerative disc disease have not been shown to involve IVDS with incapacitating episodes. In this regard, the treatment records and VA examinations reflect some physical limitations but do not indicate that bed rest was medically prescribed at any time pertinent to this appeal. Although the May 2013 VA examiner noted the Veteran reports that he had incapacitating episodes totaling 30 days in the past 12 months, the clinical evidence of record does not establish that the Veteran had been medically prescribed bed rest. Similarly, the Veteran reported experiencing 30 days of incapacitating episodes in the October 2008 VA examination and the clinical evidence of record does not establish that the Veteran had been medically prescribed bed rest. In assessing the severity of the disability under consideration, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The above-noted determinations are based on consideration of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no pertinent point has the disability under consideration been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the June 2009 SOC). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As a final point, the Board notes that, although a claim for a total disability rating based on individual unemployability (TDIU) may be raised in the record as a component of a claim for higher rating (see e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009)), here, there is no indication that the Veteran is unemployed, nor is there evidence or argument that the Veteran's lumbar spine degenerative disc disease renders him unemployable. In this regards, the record establishes that the Veteran was employed by an automotive company as an engineer prior to being laid off in 2008 and that he has been employed in quality management since October 2011. He also reported that he was seeking employment and that he took care of his child during the period of unemployment between 2008 and October 2011. Moreover, the Veteran has not otherwise suggested that he was unable to obtain or maintain employment due to his service-connected disability. As such, a claim for a TDIU due to lumbar spine degenerative disc disease has not reasonably been raised, and need not be addressed. For all the foregoing reasons, the Board finds that, there is no basis for any staged rating for the Veteran's lumbar spine degenerative disc disease, pursuant to Fenderson, and that a rating at each stage must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of any higher rating for the disability on appeal, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim of entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim for service connection for peripheral neuropathy of the right lower extremity so that he is afforded every possible consideration. In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Once the Secretary undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, he must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. §§ 4.2, 19.9. Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). In September 2012, the Board remanded the Veteran's claim for service connection to allow a VA examination to be conducted to determine the nature and etiology of his claimed condition. Specifically, the examiner was to identify all right lower extremity neuropathies and radiculopathies found to be present and provide an opinion as to whether each such disability was directly related to the Veteran's service. In addition, the examiner was to provide an opinion as to whether each such disability was caused or aggravated by his service-connected left lower extremity radiculopathy, degenerative disc disease of the lumbar spine and/or bilateral retropatellar pain syndrome. Such an opinion was obtained in May 2013. The examiner provided an opinion as to direct service connection and opined that the Veteran's peripheral neuropathy was less likely than not proximately due to or the result of his retropatellar pain syndrome; a rationale was provided for both opinions. The examiner further opined that that Veteran's lower right extremity peripheral neuropathy was not at least as likely as not proximately due to the result of his left lower extremity radiculopathy as he does not suffer from left lower extremity radiculopathy and that it was not secondary to his back condition. However, the Veteran has been awarded service connection for left lower extremity radiculopathy, effective May 17, 2007. This opinion therefore appears to be based on an inaccurate factual premise, namely that the Veteran has not been diagnosed with lower extremity radiculopathy. See Reonal v. Brown, 5 Vet. App. 460, 461(1993) (an opinion based on an inaccurate factual premise has no probative value). Therefore, as the VA examinations of record have been previously found to be inadequate by the Board and no other conclusive opinion is of record, the Board finds that a remand is required in order to obtain an adequate medical opinion. Barr, supra. A remand is therefore necessary in order to obtain an opinion regarding the etiology of the Veteran's claimed right lower extremity peripheral neuropathy and to ensure compliance with the Board's previous remand. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's entire claims file, to include a complete copy of this REMAND, to the May 2013 VA examiner for an addendum opinion. The examiner should offer an opinion as to whether the Veteran's diagnosed right lower extremity peripheral neuropathy was at least as likely as not caused or aggravated (i.e. permanently increased in severity beyond the natural progress of the disease) by his service-connected (1) left lower extremity radiculopathy or (2) degenerative disc disease of the lumbar spine. In rendering each requested opinion, the examiner should consider and discuss all relevant evidence, to include medical documents, and all lay assertions. The examiner is to specifically note that service connection has been awarded for left lower extremity radiculopathy. If the examiner who provided the May 2013 opinion is no longer employed by VA or is otherwise unavailable, or another examination of the Veteran is deemed warranted, document that fact in the claims file, and arrange for the Veteran to undergo another VA examination, by an appropriate physician, at a VA medical facility, to obtain an opinion responsive to the question and comments noted above. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should set forth all examination findings (if any), along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the May 2013 supplemental statement of the case. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ B. MULLINS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs