Citation Nr: 18156020 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 95-23 708 DATE: December 6, 2018 REMANDED Service connection for a left eye disability diagnosed as pterygium is remanded. Initial increased rating for bilateral lower extremity neuropathy is remanded. Initial increased rating for bilateral upper extremity neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to October 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from July 2012 and September 2012 rating decisions. In November 1999, the Veteran testified regarding the issues of service connection underlying the current initial increased ratings claims before a Veterans Law Judge who subsequently retired from the Board. A transcript that hearing is associated with the claims file. In January 2012 and July 2018, the Veteran was notified of the right to have another hearing before a different Veterans Law Judge. He responded that he did not desire another hearing. In a June 2015 decision, the Board reopened the claim for service connection for a left eye disability and remanded that issue and other issues listed here for additional development. Also in June 2015, the Board remanded the issue of “entitlement to an effective date earlier than September 10, 2012, for the assignment of a 40 percent rating for fibromyalgia.” The Board notes that this issue is correctly described as an increased staged rating for fibromyalgia. Fenderson v. West, 12 Vet. App. 119 (1999). In a September 2017 rating decision, the RO assigned an increased rating of 40 percent for fibromyalgia from the date of service connection (July 17, 1995), a full grant of the increased staged rating claim that was on appeal. Accordingly, that issue will not be addressed further here. Also in the September 2017 rating decision, the RO granted increased ratings of 20 percent for the Veteran’s bilateral upper and lower extremity peripheral neuropathy. Because these increases do not represent total grants of the benefits sought on appeal, the claims for increased ratings remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In a June 2016 written statement, the Veteran attempted to raise the issue of entitlement to an effective date earlier than the date of service connection for fibromyalgia. Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the local Regional Office. The Board notes that a “freestanding” request for an earlier effective date is barred, by law. That is, any claim for an earlier effective date must be submitted by appealing the rating decision that assigned the effective date in the first place. However, if the Veteran wishes to open a claim, he should do so using the prescribed form in person or online (https://www.ebenefits.va.gov/ebenefits/). 1. Service connection for a left eye disability to include a pterygium is remanded. A remand is required to obtain an additional medical opinion because the September 2015 addendum opinion does not provide the information requested in the Board’s June 2015 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance). 2. Initial increased rating for bilateral lower extremity neuropathy is remanded. 3. Initial increased rating for bilateral upper extremity neuropathy is remanded. A remand is required for these two claims to afford the Veteran a contemporaneous VA examination. The matters are REMANDED for the following action: 1. Obtain all updated records of VA and adequately identified private treatment that the Veteran has received for the disabilities on appeal. The Board recognizes that this case has been previously remanded and that the extensive procedural and medical history as well as the detailed medical questions require significant work by the RO and medical examiner. The Board regrets the need to remand the matter to the RO, however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the VA examiner and the RO to ensure compliance with these directives (that is, full and thoroughly explained answers to each of the questions) to avoid additional delays in adjudication. 2. Arrange for an appropriate clinician to provide an addendum opinion regarding the nature and likely cause of the Veteran’s left eye pterygium. Another opinion is required because the September 2015 examiner’s addendum opinion does not use the precise legal language the Board is required, by federal law, to obtain and because the examiner not did provide a sufficiently detailed explanation (rationale) for the negative opinions provided. [The Board draws the examiner’s attention to the September 2015 VA eye examination and addendum opinion and the Board’s June 2015 remand instructions, which hopefully will provide helpful information for the examiner.] The need for another examination is left to the discretion of the clinician providing the opinion. If an examination is provided, the clinician should elicit from the Veteran a detailed history regarding the onset of pterygium and any associated symptoms. Based on a review of the record and examination, if provided, the clinician should provide opinions that respond to the following: a) Is at least as likely as not (a 50 percent or better probability) that the Veteran’s left eye pterygium had its onset in or is otherwise related to the Veteran’s active service to include sun exposure, herbicide agent exposure, non-ionizing microwave radiation, radiofrequency electromagnetic waves, or other environmental exposures? b) Is at least as likely as not (a 50 percent or better probability) that the Veteran’s left eye pterygium was CAUSED by the Veteran’s service-connected fibromyalgia or peripheral neuropathy? c) Is at least as likely as not (a 50 percent or better probability) that the Veteran’s left eye pterygium was AGGRAVATED by the Veteran’s service-connected fibromyalgia or peripheral neuropathy? Aggravation in this context means any increase in severity beyond natural progression. Detailed explanations are requested for all opinions provided and are very much appreciated. Please note that an opinion based solely on the general statement that there is no relationship between two conditions or that no medical evidence supports a given relationship is not legally adequate. 3. Then arrange a VA neurological examination to evaluate the severity of the Veteran’s bilateral upper and lower extremity peripheral neuropathy. The examiner should answer the following questions based on (1) a review of the claims file and (2) interview and examination of the Veteran. Upper extremities The examiner should classify the impairment shown as mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerves and, most importantly, provide a DETAILED EXPLANATION for the chosen classification. The examiner should also note whether there is associated marked muscle atrophy and whether the Veteran’s neurological symptoms are sensory, motor, or both. Lower extremities The examiner should classify the impairment shown as mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerves and, most importantly, provide a DETAILED EXPLANATION for the chosen classification. The examiner should also note whether there is associated marked muscle atrophy and whether the Veteran’s radiculopathy symptoms are sensory, motor, or both. A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation.). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel