Citation Nr: 18147176 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 12-31 226A DATE: November 2, 2018 REMANDED Entitlement to service connection for a bilateral lower extremity neurological disability, to include as secondary to a service-connected degenerative disc disease of the lumbar spine, is remanded. Entitlement to an increased disability rating for bilateral hearing loss in excess of 20 percent prior to March 5, 2014; in excess of 50 percent from March 5, 2014, to October 20, 2014, and; in excess of 60 percent from October 21, 2014, and thereafter, on an extraschedular basis only, is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to September 1992. This matter was most recently before the Board of Veterans’ Appeals (Board) in August 2017, when the Board denied service connection for lower extremity pain and neuropathy and increased ratings for hearing loss. The Veteran subsequently appealed the matters to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Court granted the parties Joint Motion for Remand (JMR), vacated the August 2017 Board decision and remanded the issues. A claim for TDIU is also before the Board, as part of the claim for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). See also VA Form 21-8940, dated April 2018; Statement in Support of Claim, dated July 2017. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. 1. Entitlement to service connection for a bilateral lower extremity neurological disability, to include as secondary to a service-connected degenerative disc disease of the lumbar spine, is remanded. The parties to the JMR noted that the prior Board decision assigned little probative value to July 1993 treatment records because they were based on the Veteran’s subjective lay reports. However, the July 1993 report was also based on a medical examination of the Veteran and x-ray studies. At issue is whether those records show that the Veteran had an organic disease of the nervous system within one year of service. On VA examination in April 2016, the Veteran reported that he had instances of experiencing numbness in his feet, and that it had been ongoing for 30 or 40 years. The examiner ultimately opined that it was less likely as not that the Veteran’s lower extremity disability was caused by his service and less likely as not that the Veteran’s lower extremity neurological disability was caused or aggravated by his service-connected lumbar spine disability because the Veteran had a normal physical examination with subjective complaints not indicative of radiculopathy or neuropathy. The ultimate opinion is inconsistent because the examiner noted a normal physical examination, but findings revealed absent deep tendon reflexes of the lower extremities bilaterally. The examiner did not consider service treatment records that indicated that he had pain in the lower extremities both in service or the July 1993 private treatment records. A new opinion is required. See Barr, 21 Vet. App. at 303; Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 2. Entitlement to an increased disability rating for bilateral hearing loss in excess of 20 percent prior to March 5, 2014, in excess of 50 percent from March 5, 2014, to October 20, 2014, and in excess of 60 percent from October 21, 2014, and thereafter, on an extraschedular basis only, is remanded. The prior Board decision noted the Veteran experienced social isolation, which is not contemplated by the rating criteria for hearing loss, but found no nexus between the isolation and the Veteran’s hearing loss. However, the parties to the JMR cited the October 2014 VA examiner’s finding that the Veteran’s hearing loss impacts his ordinary conditions of daily life in that he reported that he does not attend church or other social functions. The record also includes a May 2010 statement from the Veteran where he reported he was becoming more and more isolated from others because of his hearing and difficulty understanding, asserting that his social life is “almost nonexistent.” As social isolation is not a functional impairment contemplated by the rating criteria for hearing loss, the appeal should be referred to VA's Under Secretary for Benefits or Director of Compensation Service for consideration of the assignment of an extra-schedular rating, to include each staged period throughout the period on appeal. 38 C.F.R. § 3.321 (b). 3. Entitlement to TDIU is remanded. The claim for TDIU is inextricably intertwined with the service connection and increased rating claims being remanded Adjudication must be deferred until the requested development is complete.   The matters are REMANDED for the following action: 1. Take all appropriate action to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. 2. After completion of the above, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the lower extremity neurological disability After reviewing the claims file and examining the Veteran, the examiner should answer the following: (a.) Identify all neurological disabilities of the Veteran’s lower extremities, bilaterally or singularly. If possible, identify the date of onset of each disability. In answering this question, the examiner must specifically address the July 1993 treatment records and state whether those findings are evidence of an “organic disease of the nervous system.” (b.) Is it as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral lower extremity neurological disability was caused by the Veteran’s active service, to include the reported lower extremity pain while in-service? (c.) Is it as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral lower extremity neurological disability was caused or aggravated by the Veteran’s service-connected lumbar spine degenerative disc disease. 3. Refer the Veteran's bilateral hearing loss claim to the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). A copy of the Director's decision on this claim must be included in the file. 4. Thereafter, readjudicate all issues on appeal, to include TDIU. M. E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel