Citation Nr: 1806998 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-12 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection a right leg disability, other than radiculopathy. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to a disability rating in excess of 20 percent prior to May 31, 2016 and in excess of 40 percent thereafter, for service-connected degenerative joint disease of the lumbar spine. 6. Entitlement to a disability rating in excess of 10 percent prior to May 31, 2016, and in excess of 20 percent thereafter, for service-connected radiculopathy of the left lower extremity. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to May 31, 2016. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD S. Reed, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to March 1974. This case comes before the Board of Veterans' Appeals (the Board) from rating decisions in April and June 2013 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran appeared at a Travel Board hearing at the RO in September 2015 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In December 2015, the Board remanded this claim for additional development. Subsequently, the claim underwent development at the AOJ. A July 2016 rating decision granted an increased rating of 20 percent for the Veteran's radiculopathy of the left lower extremity, effective May 31, 2016, and an increased rating of 40 percent for degenerative joint disease of the lumbar spine, effective May 31, 2016. As these increases do not constitute a full grant, the issues remain on appeal. In July 2016 a supplemental statement of the case (SSOC) was issued, and the claim is now before the Board, once again. The issues of entitlement to a disability rating in excess of 20 percent prior to May 31, 2016, and in excess of 40 percent thereafter, for service-connected degenerative joint disease of the lumbar spine and entitlement to a TDIU prior to May 31, 2016, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's left knee disability was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin 2. The Veteran's right knee disability was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin 3. The Veteran's right leg disability, other than radiculopathy, was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin 4. The Veteran's sleep apnea was not shown in service or manifest to a compensable degree within the first post-service year, was not shown for many years following service, and is not etiologically related to an event, disease, or injury of service origin. 5. For the entire period on appeal the Veteran's radiculopathy of the left lower extremity was manifested by incomplete paralysis of the sciatic nerve, which resulted in no more than moderate neuritis. CONCLUSION OF LAW 1. The Veteran's left knee disability was not incurred in or aggravated by the Veteran's military service or a service-connected disability, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). 2. The Veteran's right knee disability was not incurred in or aggravated by the Veteran's military service or a service-connected disability, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). 3. The Veteran's right leg disability, other than radiculopathy, was not incurred in or aggravated by the Veteran's military service or a service-connected disability, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). 4. The Veteran's sleep apnea was not incurred in or aggravated by the Veteran's military service or a service-connected disability, and may not be presumed to have been so incurred. 38 U.S.C. §§ 1.110, 1112, 1113, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309(a) (2017). 5. Prior to May 31, 2016, the criteria for a 20 percent rating, but no higher, for radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2017). 6. From May 31, 2016, forward, the criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (explaining that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations The Veteran's claim was remanded in December 2015 to obtain addendum opinions on whether the conditions that were claimed for service connection were due to aggravation by a service-connected condition, and to obtain an updated medical examination for the Veteran's radiculopathy of the left lower extremity. Additionally, the AOJ was instructed to contact the Veteran to obtain information about any outstanding private medical records. Upon remand the Veteran was sent a letter requesting that he identify any outstanding private medical records and complete a release form for VA to obtain those records. The Veteran did not respond to the request. Updated VA medical records were uploaded into the file. Additionally, the addendum opinions and additional examination were obtained. The opinions are thorough, supported by the record, and answer the questions posed. The examination report was adequate, provided the pertinent information, and is consistent with the evidence of record. Accordingly, there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Service Connection The Veteran has claimed service connection for disabilities of the left and right knee, a disability of the right leg exclusive of his service-connected radiculopathy, and for sleep apnea. His statements have raised theories of service connection on a direct, secondary, and aggravation basis. Below, the legal criteria for establishing service connection are outlined, followed by an analysis for each claimed disability. Legal Criteria Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2017). To establish service connection on a direct basis, a Veteran must show: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Additionally, a disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310 (b) (2017). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017); Walker v Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 263 (2015). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b) (2017). This rule does not mean that any manifestation in service will permit service connection. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Of note, the Court of Appeals for Veterans Claims has found that a layperson is capable of observing tinnitus. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). Left Knee The Veteran's claim for his a left knee disability indicates that he believes that his left knee was either injured in the same accident that resulted in his back injury or is secondary to the back injury. The Veteran's medical records establish that the Veteran has a diagnosis of left knee strain, which is satisfies the first element of service connection. With regard to direct service connection, the accident the Veteran reports, a fall in service, is documented in his service treatment records. Therefore, the second element is satisfied as there was an in-service event. There was an indication of "trick knee" reported on the report of medical history at the time of the Veteran's separation, but no further remarks were made regarding it. There were no instances noted in service, no notation of it at the medical examination, and no instances of it documented in any records since then. Thus this does not evince an in-service incurrence of the currently diagnosed condition of knee strain. The Veteran's condition of knee strain is not a chronic condition, and thus not entitled to any presumptions of service connection. Further, the Veteran's knee strain is not documented in service. While there is a report of intermittent pain in from the legs down, this was not diagnosed as knee strain, and was not reported in the exit examination. Moreover, the May 2013 VA examiner stated that based on a review of the record, those symptoms were radicular in nature, a separate condition for which the Veteran is service connected. Therefore, the Veteran's left knee strain was not documented in service. Nevertheless a positive nexus opinion could satisfy the third element of direct service connection. However, the May 2013 examiner opined it was less likely than not that the Veteran's left knee strain is related to his active service. The examiner provided a thorough analysis of the relevant records and supported his conclusion with a valid rationale. This opinion is from a medical professional and is consistent with the record and thus is afforded great weight. The Veteran has contended that his left knee disability is related to his in-service accident, however he lacks the necessary medical experience and training to competently opine such a connection. Further, the Veteran's testimony indicated that his unable to distinguish the type of pain he experiences from radicular pain, edema, and knee strain. Thus, by his own testimony he cannot credibly contend that the symptoms he experiences from knee strain have existed since he was in service. Thus the weight of the evidence is against establishing service connection on a direct basis. The May 2013 examiner also considered the Veteran's contention that the condition was secondary to the Veteran's disability of the lumbar spine. The examiner opined it was less likely than not that the Veteran's disability of the lumbar spine resulted in his left knee strain. The examiner explained that there is no direct relationship between the two injuries and that they are anatomically unrelated. This opinion is given significant weight, and thus the weight of the evidence is against establishing service connection on a secondary basis. The Veteran made statements that indicated he disagreed with the examiner's conclusions in May 2013, however, they did not directly question the examiner's conclusion, but instead raised a theory of service connection based on aggravation due to an altered gait. This question was not addressed by the May 2013 examiner; however, upon remand an addendum opinion was obtained on this issue. In May 2016, the Veteran was provided with a knee examination and the examiner concluded based on the examination and a review of the record that that Veteran's left knee disability was not aggravated by a service-connected condition. The examiner explained that conditions were not medically related and that the records did not show any complaints of aggravation. This opinion is given great weight. While the Board has considered the Veteran's reports that the condition was worsened by his service-connected conditions, the Veteran, as discussed above is not competent to draw such conclusion. Further, there is no evidence of record to support that there has been any aggravation of a knee condition. Thus the weight of the evidence is against establishing service connection on the basis of aggravation. Right Knee The Veteran's claim for his a right knee disability indicates that he believes that his right knee was either injured in the same accident that resulted in his back injury or is secondary to the back injury. The Veteran's medical records establish that the Veteran has a diagnosis of right knee strain, which is satisfies the first element of service connection. With regard to direct service connection, the accident the Veteran reports, a fall in service, is documented in his service treatment records. Therefore, the second element is satisfied as there was an in-service event. Again, there was an indication of "trick knee" reported on the report of medical history at the time of the Veteran's separation, but no further remarks were made regarding it. There were no instances noted in service, no notation of it at the medical examination, and no instances of it documented in any records since then. Thus this does not evidence an in-service incurrence of the currently diagnosed condition. As noted above, the Veteran's condition of knee strain is not a chronic condition, and thus not entitled to any presumptions of service connection. Further, the Veteran's knee strain is not documented in service. While there is a report of intermittent pain in from the legs down, this was not diagnosed as knee strain, and was not reported in the exit examination. Moreover, the May 2013 VA examiner stated that based on a review of the record, those symptoms were radicular in nature, a separate condition for which the Veteran is service connected. Therefore, the Veteran's right knee strain was not documented in service. Nevertheless a positive nexus opinion could satisfy the third element of direct service connection. However, the May 2013 examiner opined it was less likely than not that the Veteran's right knee strain is related to his active service. The examiner provided a thorough analysis of the relevant records and supported his conclusion with a valid rationale. This opinion is from a medical professional and is consistent with the record and thus is afforded great weight. The Veteran has contended that his right knee disability is related to his in-service accident, however he lacks the necessary medical experience and training to competently opine such a connection. Further, the Veteran's testimony indicated that his unable to distinguish the type of pain he experiences from radicular pain, edema, and knee strain. Thus, by his own testimony he cannot credibly contend that the symptoms he experiences from knee strain have existed since he was in service. Thus the weight of the evidence is against establishing service connection on a direct basis. The May 2013 examiner also considered the Veteran's contention that the condition was secondary to the Veteran's disability of the lumbar spine. The examiner opined it was less likely than not that the Veteran's disability of the lumbar spine resulted in his right knee strain. The examiner explained that there is no direct relationship between the two injuries and that they are anatomically unrelated. This opinion is given significant weight, and thus the weight of the evidence is against establishing service connection on a secondary basis. The Veteran made statements that indicated he disagreed with the examiner's conclusions in May 2013, however, they did not directly question the examiners logic, but instead raised a theory of service connection based on aggravation due to an altered gait. This question was not addressed by the May 2013 examiner; however, upon remand an addendum opinion was obtained on this issue. In May 2016, the Veteran was provided with a knee examination and the examiner concluded based on the examination and a review of the record that that Veteran's right knee disability was not aggravated by a service connected condition. The examiner explained that conditions were not medically related and that the records did not show any complaints of aggravation. This opinion is given great weight. While the Board has considered the Veteran's reports that the condition was worsened by his service-connected conditions, the Veteran, as discussed above is not competent to draw such conclusion. Further, there is no evidence of record to support that there has been any aggravation of a knee condition. Thus the weight of the evidence is against establishing service connection on the basis of aggravation. Right Leg Condition The Veteran has reported that he has a right leg condition that is separate from that of his service-connected radiculopathy. He described a wound at his hearing. The claim was remanded for clarification of the conditions. In May 2016 a VA examiner conducted an in-person examination of the Veteran and reviewed his medical records. He was requested to identify any non-radiculopathy disabilities of the right leg. The examiner identified that the Veteran has lymphedema/chronic venous insufficiency with an ulcer and inflammation with chronic venous status dermatitis/eczema. The Veteran has stated that he believes these conditions are related to his service and says they have occurred since service. As noted above, the Veteran did sustain a fall in service injuring his back causing radicular symptoms in his legs. Additionally, he reported leg cramps while in service. Thus, an in-service event or injury is established. The record, however, does not establish the in-service incurrence of the right leg conditions he has been diagnosed with. He did not have symptoms or reports of these conditions while in service. The medical records indicate they occurred after service and were first reported in the context of congestive heart failure and hepatitis C. The VA examiner concluded that it was less likely than not that the conditions were directly related to service. The examiner explained that the leg cramps the Veteran reported are not related to the lymphedema or skin conditions currently present. The examiner also noted that leg cramps have not been reported as symptoms of the current conditions. This opinion is consistent with the record and given great weight. Thus a preponderance of the evidence is against establishing service connection on a direct basis. The examiner also considered whether the conditions were secondary to or aggravated by any service-connected conditions. The examiner opined that the conditions were less likely than not caused or aggravated by any service-connected conditions. The examiner explained there is no medical connection between the Veteran's service-connected conditions and that the Veteran's conditions did not aggravate the condition even considering flare-ups that the Veteran reports result in extended periods in his recliner. The examiner's opinion is supported by a thorough rationale and a review of the record. Thus it is given significant weight. The Veteran's statements that the conditions may be related are considered, but as noted above, he is not competent to draw medical conclusions. Further, the examiner considered the Veteran's reported symptoms related to his service-connected disabilities and concluded there was no medical connection between them and the right leg conditions. Thus the weight of the evidence is against establishing service connection on a secondary basis or by aggravation. Sleep Apnea The Veteran has claimed entitlement to service connection for sleep apnea. He has contended it is secondary to his service-connected disabilities. He has specifically advanced a theory that his conditions caused him to gain weight resulting in sleep apnea. The Veteran has been diagnosed with obstructive sleep apnea. Thus, the first element of service connection has been satisfied. The Veteran does not contend that the condition is the direct result of his service. There are no reports of the condition or symptoms thereof in service. Indeed, the condition was not diagnosed until 2009. Thus service connection on a direct basis cannot be established. The Veteran underwent a VA examination in May 2016 for his sleep apnea. The examiner considered whether the condition was secondary to the Veteran's service-connected conditions and concluded that it was less likely than not a result of the Veteran's service connected disabilities. The examiner explained that it was likely caused by the Veteran's weight gain since service. The examiner considered the Veteran's contention that his weight gain was due to the disabilities, but stated that the weight gain was not due to the disabilities. Weight gain is not a symptom of degenerative joint disease of the lumbar spine or radiculopathy. Thus the weight of the evidence is against establishing service connection on a secondary basis. The examiner also considered whether the Veteran's sleep apnea was aggravated by service-connected disabilities. The examiner stated it was less likely than not, noting there had been no documented aggravation of the condition. In the absence of aggravation, service connection cannot be established on that basis. Therefore, the weight of the evidence is against establishing service connection based on aggravation for sleep apnea. Increase Rating The Veteran has claimed that he is entitled to a rating in excess of 10 percent for his service-connected radiculopathy of the left lower extremity prior to May 31, 2016, and in excess of 20 percent thereafter. Below there is an explanation of the legal criteria for establishing a higher rating and an analysis of the Veteran's claim. Legal Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran' condition has been evaluated under Diagnostic Code (DC) 8520. The DC provide that a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation requires moderate incomplete paralysis; a 40 percent evaluation requires moderately severe incomplete paralysis; a 60 percent evaluation requires severe incomplete paralysis with marked muscular atrophy; and an 80 percent evaluation requires complete paralysis of the sciatic nerve. When there is complete paralysis, 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. 38 C.F.R. § 4.124a , Diagnostic Code 8520. It is noted that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement, when bilateral combine with application of the bilateral factor. 38 C.F.R. § 4.124a . Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 . Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 . Radiculopathy of the Left Lower Extremity The Veteran is service connected for radiculopathy of the left leg. He was awarded a disability rating of 10 percent in an April 2013 rating decision. The Veteran appealed the decision, stating that he was entitled to a higher rating. In July 2016, the Veteran was awarded a rating of 20 percent, effective May 31, 2016. He continued his appeal. The Veteran reports pain that radiates into his legs. In addition to the pain he reports there is numbness. The Veteran's record shows consistent treatment with pain medication for his radiculopathy. He has also testified he has used a TENS unit. His pain is constant. However, the Veteran has also testified he is uncertain as to the nature of his pain, and that he is unable to distinguish the types of pains he feels in his lower left leg as it relates to his knee strain, radiculopathy, or edema. The Veteran has been afforded two VA examinations to evaluate his radiculopathy. One in July 2012, the other in May 2016. Both examinations were conducted by medical professionals. Both examinations revealed numbness in the left lower extremity and radicular pain. The July 2012 VA examiner noted the numbness in the left lower extremity was considered mild. The Veteran's radicular pain was noted as moderate. The May 2016 examiner noted mild paresthesias in the left lower leg and moderate constant pain. The May 2016 examiner noted the overall severity of the Veteran's radiculopathy in the left lower extremity was moderate. The examination reports reflect the Veteran's reports of pain and radiculopathy. They were specific to the Veteran's service-connected radiculopathy. The reports are consistent with the Veteran's reports and treatment records. They reflect incomplete paralysis with moderate symptomology, throughout the entire period on appeal. Applying the regulations and criteria for the Veteran's service-connected condition, this warrants a 20 percent rating throughout the period on appeal. A higher rating would require that the Veteran's radiculopathy to cause partial paralysis with moderately severe symptomology. The record does not reflect such symptomology. ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection a right leg disability, other than radiculopathy, is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to a disability rating of 20 percent, but no higher, for the period prior to May 31, 2016 for service-connected radiculopathy of the left lower extremity is granted. Entitlement to a disability rating in excess of 20 percent for the period of May 31, 2016, forward, for service-connected radiculopathy of the left lower extremity is denied. REMAND The development actions requested in the Board's December 2015 remand were not substantially completed. A remand by the Board confers on claimants, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). It imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Accordingly, in the present case, the additional development specified in the Board's prior remand must be substantially completed prior to adjudication. Here the Veteran's claim for an increased rating for his degenerative disk disease of the lumbar back was remanded for an examination to determine the nature and severity of the condition. While the examination was conducted, it did not provide any information regarding the number of incapacitating episodes the Veteran has experienced as a result of intervertebral disk syndrome (IVDS). The examiner noted the Veteran did not have the condition and did not provide any further information. This conclusion contradicts prior examinations which concluded the Veteran did have IVDS. This contradiction was not explained and renders the examination incomplete. Thus the claim must be remanded to obtain an addendum opinion to clarify the nature and severity of the Veteran's condition. Entitlement to a TDIU is an inextricably intertwined issue with that of the increased rating for degenerative joint disease of the lumbar spine. As the claim for a TDIU is largely dependent on the restrictions posed by the degenerative joint disease of the lumbar spine and that the rating is necessary to establish the schedular criteria for a TDIU, adjudication of the TDIU claim must be deferred until the increased rating claim is resolved. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the May 2016 examiner or an appropriate examiner to obtain addendum opinions as to nature and etiology of the Veteran's degenerative joint disease of the lumbar spine with IVDS. A copy of this remand must be made available to the examiner for review. A new examination should not be conducted unless the examiner feels it is necessary to provide the requested opinions. Based on a review of the record the examiner is requested to provide an opinion as to the following: a. Does the Veteran have a current diagnosis of IVDS. If not, provide a rationale for the conclusion taking into account the past diagnosis of IVDS. b. If so, then provide responses to the questions on the disability benefits questionnaire regarding the nature and severity of the Veteran's IVDS as supported by the record, to include the frequency and duration of episodes resulting in incapacitation. Any opinions offered should be accompanied by the underlying reasons for the conclusions. If the examiner is unable to offer any of the requested opinions, it is essential that the he or she offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran should be afforded the applicable time period in which to respond. 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. §§ 5109B, 7112 (2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs