Citation Nr: 1513133 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 10-35 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating higher than 20 percent for sciatica of the right lower extremity (previously evaluated as peripheral neuropathy), effective December 19, 2007. 2. Entitlement to an initial rating higher than 20 percent for sciatica of the left lower extremity (previously evaluated as peripheral neuropathy), effective December 19, 2007. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from May 1958 to October 1980. This matter comes to the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted service connection for bilateral lower extremity sciatica (formerly denied as peripheral neuropathy) and assigned 10 percent ratings, effective December 19, 2007. In June 2010, the RO granted increased ratings of 20 percent for the right and left lower extremity sciatica, effective December 19, 2007. The Veteran has not indicated that he is satisfied with these ratings. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was last evaluated for compensation and pension purposes solely for his lower extremity neurological impairment in May 2009 with an addendum opinion provided in March 2010. The Veteran's representative submitted a statement in February 2015 that the 2009/2010 examinations were no longer contemporaneous to use in rating the severity of the Veteran's bilateral lower extremity sciatica. However, the Veteran's bilateral lower extremity neurological impairment was also evaluated in the context of a separate increased rating claim for his lumbar spine disability in a June 2014 VA examination. This peripheral nerves examination report noted mild incomplete paralysis of the sciatic nerve, but the associated thoracolumbar spine examination noted severe intermittent pain, severe paresthesias and/ or dysesthesias and severe numbness of the bilateral lower extremities concluding that the Veteran had severe right radiculopathy and moderate left radiculopathy. These findings should be reconciled. The Veteran also has asserted that he has been rendered unemployable as a result of the neurological impairment in his bilateral lower extremities. See, e.g., February 2008 statement; September 2009 statement. This claim should be developed, as well. Finally, all relevant VA treatment records should be obtained. Virtual VA records note VAMC treatment records dated from February 2010 to July 2013. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain any relevant VA treatment records from the Phoenix VAMC pertaining to the Veteran's bilateral lower extremity sciatica dated since July 2013. 2. Send the Veteran a notice letter pertaining to his claim for entitlement to a TDIU. 3. Thereafter, schedule the Veteran for a VA neurology examination of his bilateral lower extremities. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, should be performed. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected bilateral lower extremity neurological impairment. The examiner should review the June 2014 VA examination including the findings of mild incomplete paralysis of the sciatic nerve, but also severe intermittent pain, severe paresthesias and/ or dysesthesias and severe numbness of the bilateral lower extremities resulting in severe right lower extremity radiculopathy and moderate left lower extremity radiculopathy; and attempt to reconcile which findings most accurately reflect the Veteran's sciatica. Further, the examiner should fully describe the extent and severity of the neurological symptoms in the lower extremities, and state whether the impairment is mild, moderate, moderately severe, or severe in degree, with marked muscular atrophy, incomplete paralysis of the sciatic nerve; or whether there is complete paralysis of the sciatic nerve with foot dangle and drop, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The VA examiner is then requested to provide an opinion as to the functional impairment caused by the Veteran's service-connected bilateral lower extremity sciatica alone or in combination with the Veteran's other service-connected disabilities. In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected disabilities, as distinguished from any nonservice-connected disability. The requested opinion must also take into consideration the relevant employment history and educational history, or lack thereof. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the severity of the disability at issue or because of some other reason. 4. Thereafter, readjudicate the claims for increased rating for bilateral lower extremity sciatica and for a TDIU, in light of all additional evidence received since the last SOC in June 2010. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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 2014). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).