Citation Nr: 1804176 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 10-17 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a higher initial rating for service-connected degenerative disc disease with back strain, evaluated as 10 percent disabling prior to April 15, 2013, and in excess of 40 percent disabling thereafter. 2. Entitlement to an increased rating for service-connected diabetes mellitus, type II, evaluated as 20 percent disabling prior to May 10, 2013, and 40 percent disabling thereafter. 3. Entitlement to an increased rating for service-connected peripheral neuropathy of the left lower extremity, evaluated as noncompensable disabling prior to July 27, 2012, 10 percent disabling from July 27, 2012, to January 28 ,2014, and in excess of 20 percent disabling thereafter. 4. Entitlement to an increased rating for service-connected peripheral neuropathy of the right lower extremity, evaluated as noncompensable disabling prior to July 27, 2012, 10 percent disabling from July 27, 2012, to January 28 ,2014, and in excess of 20 percent disabling thereafter. 5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to October 1, 2013. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran had active service from August 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In July 2011, the Veteran testified at a videoconference hearing conducted before a Veterans Law Judge. A transcript of the testimony has been associated with the Veteran's claims file. The Board notes that the Veterans Law Judge who held the hearing is no longer employed by the Board. The Veteran was sent notification of such in October 2017 and offered an additional opportunity for a hearing. In a November 2017 correspondence, the Veteran's representative indicated that the Veteran did not desire an additional hearing and wanted his claim adjudicated accordingly. As such, the Board shall proceed with adjudication in this matter. This matter was previously before the Board in May 2012 and December 2013 at which time it was remanded for additional development. In June 2015, the Board then granted the Veteran an increased 40 percent evaluation for his diabetes mellitus type II for the period from May 10, 2013, to January 28, 2014. The Board also denied increased evaluations for the Veteran's bilateral lower extremity peripheral neuropathies. The issues of entitlement to an increased evaluation for the lumbar spine and entitlement to a TDIU were again remanded for additional development. That development having been completed, those claims have returned to the Board for adjudication. The Veteran also appealed the decisions regarding increased evaluations for his diabetes mellitus type II and bilateral lower extremity peripheral neuropathies to the United States Court of Appeals for Veterans Claims (Court). In August 2016, a Joint Motion for Remand (Joint Motion) was granted, thus, returning the aforementioned issues to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Lumbar Spine A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Id. at 271. Here, in June 2015, the Board previously remanded the Veteran's claim for entitlement to an increased evaluation for his lumbar spine for the provision of a VA examination. The RO proceeded to schedule the Veteran for a VA in January 2016. However, upon receiving notification that the Veteran had suffered a cerebrovascular accident in December 2015, the RO cancelled the examination and appeared to be looking into rescheduling. A review of the Veteran's claims file does not reveal that the Veteran was ever rescheduled or provided any indication that he was unable to appear for an examination. Rather, the Veteran submitted to several VA examinations for other claims over the course of that year, indicating that he would have been willing to attend an examination had it been later scheduled. As such, the Board finds that the RO did not fully comply with the 2015 Remand instructions and, therefore, the claim should be returned to the RO so that such development may be fully conducted. The Veteran should be scheduled for a VA examination and, to any extent that he is unable or unwilling to attend, such should be documented in the claims file. Peripheral Neuropathy In the Joint Motion, it was noted that the Board had not properly considered whether separate evaluations were warranted for the different nerve groups involved in the Veteran's bilateral peripheral neuropathy of the lower extremities. It was further noted that separate evaluations may be warranted in individual cases based upon distinct functional impairment. See Tropf v. Nicholson, 20 Vet.App. 317, 321 (2006) ("[T]his Court has held that if an injury or disease manifests with two different disabilities, then two separate ratings should be awarded."); Esteban v. Brown, 6 Vet.App. 259, 261 (1994); 38 C.F.R. § 4.25(b) ("[e]xcept as otherwise provided in this schedule, the disabilities arising from a single disease entity . . . are to be rated separately as are all other disabling conditions, if any"). Furthermore, the VA Adjudication Procedures Manual explains that "separate evaluations of the lower extremities may be assigned for symptoms that are separate and distinct, do not overlap, and are attributed to different lower extremity nerves." It goes on to note that separate evaluations may be warranted when symptoms arise from different nerve branches. See M21-1, Part III, Subpart iv, Chapter 4, Section G (Neurological Conditions and Convulsive Disorders) (Jan. 12, 2016). In this case, the Veteran was provided with a VA examination in July 2012 in which the examiner checked the box indicating that the peripheral neuropathy affected the femoral nerve. In a January 2014 VA examination, however, the examiner checked the box indicating that the peripheral neuropathy affected the sciatic nerve. Currently, the Veteran is only rated for a disability of the sciatic nerve. As such, the Board finds that it is necessary to obtain a VA opinion regarding the involvement of these two nerve groups in the Veteran's bilateral peripheral neuropathy of the lower extremities. In particular, it is highly relevant to ascertain whether the July 2012 VA examiner checked the wrong box, or whether there is actually femoral nerve impairment in addition to sciatic nerve impairment. Additionally, the examiner should be asked whether the Veteran's peripheral neuropathy demonstrated overlapping or non-overlapping symptoms attributable to different lower extremity nerves. Extrascheduler The Veteran's claims for the lumbar spine, diabetes mellitus type II, and peripheral neuropathy should also be forwarded to the Director of Compensation Service for consideration of extrascheduler evaluations. The Joint Motion indicated that such consideration had not previously been afforded and must be considered on remand. TDIU As to the issue of entitlement to a TDIU, the increased rating claims being remanded herein are inextricably intertwined with the Veteran's claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The issues on remand must be addressed by the agency of original jurisdiction before the Board renders a decision on the TDIU, as such outcome will affect whether the Veteran's entitlement is thus warranted. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal since he last provided this information. After he has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After these records have been retrieved and associated with the claims file, schedule the Veteran for an examination to determine the extent of the service-connected degenerative disc disease with back strain. The examiner must review the claims file. Any testing deemed necessary should be performed. All pertinent pathology associated with the service-connected back disorder should be noted in the examination report. The examiner should note the presence or absence of any favorable or unfavorable ankylosis of the Veteran's thoracolumbar spine. The examiner should also note the presence or absence of any unfavorable ankylosis. In addition, the examiner should identify any neurological pathology related to the service-connected low back disorder (identifying the nerves involved or seemingly involved) and fully describe the extent and severity of those symptoms. The examiner should document the number of weeks, if any, during any 12-month period, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome of the lumbar spine that requires bed rest prescribed by a physician and treatment by a physician. Also, the examiner should provide the ranges of motion of the Veteran's lumbosacral spine. The examiner should also note whether--upon repetitive motion-- there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range-of-motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should also provide an opinion concerning the occupational impact of the service-connected low back disorder. A complete rationale for all opinions expressed must be provided. 3. Provide the Veteran with a VA examination for his bilateral peripheral neuropathy of the lower extremities by a qualified specialist. The examiner must review the claims file. Any testing deemed necessary should be performed. All pertinent pathology associated with the service-connected peripheral neuropathy should be noted in the examination report. The examiner should specifically identify which nerve groups are involved in the Veteran's peripheral neuropathy for each extremity. To the extent that multiple nerve groups are involved, the examiner should discuss whether neuropathy demonstrated overlapping or non-overlapping symptoms attributable to different lower extremity nerves. The examiner is asked to specifically reference the findings of the July 2012 and January 2014 VA examinations and discuss the discrepancies in nerve group identification, to include any reconciliation of such findings. In this regard, the examiner should discuss whether the nerve groups identified by each pervious examiner represented a correct assignment based upon the medical findings of record. The examiner should also provide an opinion concerning the occupational impact of the service-connected peripheral neuropathy. A complete rationale for all opinions expressed must be provided. 4. The Veteran's claims for increased evaluations for the lumbar spine, diabetes mellitus type II, and peripheral neuropathy should also be referred to the Director of Compensation Service for consideration of extrascheduler evaluations. 5. After completing the above action, and any other development, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).