Citation Nr: 1621665 Decision Date: 05/31/16 Archive Date: 06/08/16 DOCKET NO. 11-19 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE 1. Entitlement to service connection for neuropathy of the lower extremities. 2. Entitlement to service connection for radiculopathy of the lower extremities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran served on active duty from January 2004 to April 2005. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In July 2014, the Board remanded the issues on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. As the Board explained in its July 2014 remand, the issues of service connection for peripheral neuropathy and radiculopathy have been bifurcated into separate issues, as set forth on the title page of this decision, for the purpose of clarity in development and adjudication. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND This matter must be remanded because there was not substantial compliance with the Board's July 2014 remand. Specifically, the Board remanded the matter for multiple reasons, including to arrange for an addendum VA examination opinion. The Board explained that a VA examination was needed because there was conflicting evidence regarding the existence of the claimed conditions. Upon remand, the matter was returned for an addendum in March 2015. Upon review of the examination request, the prior examiner remarked as follows: 1. I cannot opine further regarding possible peripheral neuropathy and/or [] spinal radiculopathy. This exam is almost TWO YEARS OLD!!! 2. Veteran needs another exam, from a new FORM 2507 request ****which clarifies exactly what opinion(s)/exam(s) are needed***. (Emphases in original.) Since that time, it does not appear that an attempt was made to schedule the Veteran for an in-person examination, as indicated by the March 2015 VA examiner. Of note, it appears that the RO did attempt to arrange two VA examinations, including a spine examination, in April 2016. These two examinations were scheduled to be held in May 2016, approximately two weeks prior to the Board's instant review of the matter. (It appears that the Veteran failed to appear for both examinations.) These two examinations do not appear to have been scheduled for purposes of complying with the Board's remand instructions. Importantly in this regard, the Veteran's claims file includes administrative entries in VBMS dated in April 2016, including a deferred rating decision and a Note, identifying these as "future exam[inations]," and not examinations in connection with the remanded appeal. Consistent with this conclusion, a Supplemental Statement of the Case (SSOC) was issued in June 2015, and it cites the results of the prior examination from May 2013 as if it were the addendum asked for by the Board. This confusion is reasonable as the March 2015 examination report includes the addendum at the top of the report followed immediately by a complete duplicate copy of the May 2013 VA examination. Moreover, the matter was re-certified to the Board in June 2015, and the Board is mindful that it is not standard practice for the RO to arrange a VA examination to be conducted after the SSOC was issued and after the case was re-certified to the Board. In light of these events, the Board cannot find that there was substantial compliance with the Board's remand directives. Nor does the Board find that the Veteran's failure to appear at the May 2016 VA examinations is a mitigating factor at present. Updated VA treatment records should also be secured. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Then arrange for the Veteran to undergo a VA examination to address the claimed disorders. The relevant information in the claims file must be made available to the examiner for review. Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions regarding the history of his symptomatology, and the conflicting medical assessments. The examiner is also asked to undertake any indicated studies. Based on the examination results, the examiner is asked to provide an expert medical opinion on each of the following questions: (a) Provide a current diagnosis for any and all radiculopathy and/or neurologic disorders found extant in the lower extremities. If the Veteran previously had any such condition, but it is no longer extant, when did that condition resolve? (b) For each diagnosed disorder, is the condition proximately due to, the result of, or caused by any other medical condition(s), to include the Veteran's service-connected herniated disc, L4-L5, L5-S1? If so, please identify the other medical condition(s). (c) If not caused by another medical condition, has any such disorder been aggravated (made permanently worse or increased in severity) by any other medical condition(s), such as herniated disc, L4-L5, L5-S1? If so, please identify the other medical condition(s). Also, please identify whether any increase in severity was due to the natural progress of the disease. In answering all questions (a) to (c), please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. 3. After completing all above actions, plus any further action needed as a consequence of the development completed, readjudicate the remanded claims with consideration of all pertinent evidence and legal authority and addressing all relevant theories of entitlement. If any benefit sought on appeal remains denied, the AOJ should furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations. The Veteran and his representative should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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. BUSH 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).