Citation Nr: 1808342 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-04 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to a separate compensable rating for bilateral sciatica secondary to a service-connected low back disability. 2. Entitlement to a disability rating in excess of 10 percent for service-connected right knee degenerative arthritis with patellofemoral syndrome. 3. Entitlement to a disability rating in excess of 10 percent for service-connected left knee patellofemoral syndrome with chondromalacia. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from September 1988 to February 1992 and from December 1992 to July 1997, to include service in Southwest Asia. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon and in Boise, Idaho. The jurisdiction of the Veteran's claims file is currently with the RO in Boise, Idaho. The issues involving the rating of the Veteran's bilateral knee disabilities are on appeal from a February 2010 rating decision. The issue of TDIU is on appeal from a September 2011 rating decision, which also granted an increased rating of 20 percent for the Veteran's service-connected low back disorder. The Veteran's Notice of Disagreement (NOD) was received in June 2012, which requested entitlement to a separate compensable rating for bilateral sciatica associated with the low back disability. An October 2013 Statement of the Case (SOC) denied a separate compensable rating for bilateral sciatica. In February 2015, the Board denied a rating in excess of 50 percent for PTSD, a rating in excess of 10 percent for a right wrist disability, a separate compensable rating for bilateral sciatica, and granted an earlier effective date for a low back disability. The Board also remanded the issues of service connection for GERD, to include as secondary to service-connected PTSD, entitlement to service connection for sleep apnea, to include as secondary to service-connected PTSD, entitlement to an evaluation in excess of 10 percent for the right knee disability, to include a separate compensable rating for instability, entitlement to an evaluation in excess of 10 percent for the left knee disability, to include a separate compensable rating for instability, and entitlement to TDIU. The Veteran appealed the Board's decision, in part, to the United States Court of Appeals for Veterans Claims (Court). In June 2014, the Court issued an Order granting a Joint Motion for Remand by the parties, vacating the decision with respect to the issues of a rating in excess of 50 percent for PTSD and a separate compensable rating for bilateral sciatica, and remanding the matter to Board for further action. In August 2016, the Board granted an increased disability rating of 70 percent for PTSD. In an April 2017 decision, the RO granted service connection for GERD and assigned a 10 percent evaluation effective February 24, 2012. Most recently the case was before the Board in September 2017, when the issue of entitlement to sleep apnea was denied. At that time the issues involving the Veteran's knees, sciatica, and TDIU were remanded for examination for additional development which has not been completed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In September 2017 the Board remanded the case for additional examinations to be conducted with respect to the claims for increased ratings for the Veteran's knees and a separate rating for sciatica. Unfortunately, none of the action ordered in that remand has been conducted; this mandates remand. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be accorded the appropriate examinations to ascertain the current level of severity of his service-connected right and left knee disabilities. 2. The Veteran should be accorded the appropriate examination with a qualified medical professional, preferably a neurologist, to address the etiology and current severity of any diagnosed sensory neuropathy of the lower extremities. All testing deemed necessary by the examiner, to potentially include EMG testing, should be performed, and all findings should be reported in detail. Based on a review of the file, reports from the Veteran, and physical examination, the examiner should indicate whether the Veteran has neuritis, neuralgia or paralysis of any nerve affecting the right and left lower extremities that is caused by the service-connected low back disability. The examiner should state an opinion as to whether any neurological involvement shown is best classified as "mild," "moderate," "moderately severe," or "severe." A clear rationale for all opinions expressed should be provided and a discussion of the facts and medical principles involved should be included. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 3. After the above development has been completed, the Veteran's claims must be readjudicated. If any benefit on appeal remains denied, the Veteran and his attorney must be provided a supplemental statement of the case. After an adequate opportunity to respond has been provided, the appeal must be returned to the Board for appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).