Citation Nr: 1604276 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 10-36 510A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the left lower extremity involving the sciatic nerve prior to June 23, 2014. 2. Entitlement to an initial evaluation in excess of 40 percent for peripheral neuropathy of the left lower extremity involving the sciatic nerve on or after June 23, 2014. 3. Entitlement to an initial evaluation in excess of 20 percent for peripheral neuropathy of the right lower extremity involving the sciatic nerve prior to June 23, 2014. 4. Entitlement to an initial evaluation in excess of 40 percent for peripheral neuropathy of the right lower extremity involving the sciatic nerve on or after June 23, 2014. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to October 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO granted service connection for peripheral neuropathy of the left and right lower extremities involving the sciatic nerve and assigned separate 10 percent evaluations effective from December 16, 2008. Jurisdiction over the case was subsequently transferred to the RO in Houston, Texas. Initially, the Board notes that the Veteran withdrew his appeal as to the issues of entitlement to an increased evaluation for diabetes mellitus; service connection for chronic bladder syndrome; and whether new and material evidence has been submitted to reopen a claim for service connection for peripheral neuropathy of the bilateral upper extremities, as addressed in an April 2010 statement of the case (SOC). See July 2014 written statement. Thereafter, the RO granted service connection for peripheral neuropathy of the bilateral upper extremities in an unappealed December 2014 rating decision. The Veteran also initiated an appeal as to the denial of a request for automobile and adaptive equipment or for adaptive equipment only, as well as the denial of an earlier effective date for the grant of service connection for ischemic heart disease, as addressed in a June 2014 SOC; however, he did not perfect an appeal as to those issues. In an October 2014 rating decision, the RO increased the evaluations for the bilateral lower extremity peripheral neuropathy to 20 percent effective from December 16, 2008. In a December 2014 rating decision, the RO increased the bilateral lower extremity evaluations to 40 percent, effective from June 23, 2014. Nevertheless, as these evaluations do not represent the highest possible benefit, the issues are in appellate status and have been recharacterized as stated above. AB v. Brown, 6 Vet. App. 35 (1993). Based on the foregoing, the issues in appellate status are as stated above. A hearing was held before a Decision Review Officer (DRO) at the RO in November 2010. A hearing was also held before the undersigned Veterans Law Judge at the Central Office in Washington, D.C., in August 2015. A transcript of the Board hearing is of record. Thereafter, the Veteran submitted a statement from his private treatment provider, along with a waiver of the RO's initial consideration of the additional evidence. This appeal was processed via a paper claims file and Virtual VA and Veterans Benefits Management System (VBMS) electronic claims files. The VBMS electronic claims file contains additional VA treatment records already considered by the Agency of Original Jurisdiction (AOJ), as well as the Board hearing transcript, the evidence submitted after the August 2015 hearing, and an October 2015 written appellate brief. The Virtual VA electronic claims file contains additional VA treatment records already considered by the AOJ. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND On review, the Board finds that additional development is necessary prior to final adjudication of the Veteran's claims. Specifically, it appears that there may be outstanding, relevant private treatment records, as detailed in the directives below, as well as Social Security Administration (SSA) records. While the case is on remand, updated VA treatment records should also be obtained. In addition, the record reflects that the Veteran appeared for a hearing before a DRO in November 2010 regarding his appeal; however, the transcript from that hearing is not of record and should be obtained. Finally, the Veteran was most recently provided a VA examination in connection with these claims in June 2014. During the August 2015 hearing, the Veteran testified that he no longer receives VA treatment. He did explain that he receives private treatment; however, the record does not contain the actual treatment records from these non-VA providers. See August 2015 Bd. Hrg. Tr. at 30-33; see also, e.g., July 2015 Dr. K.G. written statement. In addition, the Veteran and his representative have essentially alleged that the bilateral lower extremity disability had increased in severity since the last VA examination. See, e.g., Bd. Hrg. Tr. at 21-22; October 2015 written appellate brief. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Based on the foregoing, the Board finds that a more recent examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected bilateral extremity disability. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his left and right lower extremity peripheral neuropathy involving the sciatic nerve. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should be made for any relevant private treatment the Veteran has received, including from the providers identified during the August 2015 Board hearing and in VA treatment records, Dr. K.G., Dr. N.M., Dr. W., and Seton Hays Hospital. See September 2013 and August 2014 VA treatment records (noting Veteran following with private podiatrist and neurologist); Bd. Hrg. Tr. at 30-37. The AOJ should also secure any outstanding, relevant VA treatment records. 2. The AOJ should obtain a copy of any decision to grant or deny SSA disability benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 3. The AOJ should obtain and associate the November 2010 DRO hearing transcript with the claims file. See notation on August 2010 notification letter and November 2010 SSOC indicating a personal hearing was conducted. If a transcript of the hearing was not generated or is otherwise unavailable, the claims file should be so documented. 4. After completing the above actions, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected peripheral neuropathy of the bilateral lower extremities involving the sciatic nerve. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran's peripheral neuropathy of the bilateral lower extremities involving the sciatic nerve under the rating criteria. In particular, the examiner should indicate whether the Veteran has incomplete paralysis that is mild, moderate, moderately severe, or severe with marked muscular atrophy. He or she should also state whether the Veteran has complete paralysis where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. In addressing the relevant clinical findings, the examiner should: (1) note the location and severity of any neurological symptoms and the nerve groups involved; (2) state whether there is loss of use of the left and/or right foot; and (3) clarify whether the Veteran's bilateral foot drop and problems with his toenails are manifestations of the service-connected bilateral lower extremity peripheral neuropathy disability. See, e.g., July 2015 Dr. K.G. written statement (noting medical problems including bilateral foot drop requiring ankle-foot orthosis for both legs); August 2015 Bd. Hrg. Tr. at 17 (Veteran testified that it had been a year since he had a toenail grow). If the examiner is unable to distinguish between the symptoms associated with the service-connected bilateral lower extremity peripheral neuropathy disability and any symptoms associated with a nonservice-connected disorder, he or she should state so in the report. See, e.g., April 2011 Dr. S.A. written statement; September 2014 VA opinion. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing the above actions and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ J.W. ZISSIMOS 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) (2015).