Citation Nr: 20007318 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 16-53 435A DATE: January 28, 2020 REMANDED Entitlement to a rating in excess of 30 percent prior to September 14, 2019 for service-connected residual of a cold injury, right lower extremity (now rated as sciatic nerve right lower extremity and femoral nerve right lower extremity) and in excess of 60 percent thereafter is remanded. Entitlement to a rating in excess of 30 percent prior to September 14, 2019 for service-connected residual of a cold injury, left lower extremity (now rated as sciatic nerve left lower extremity and femoral nerve left lower extremity) and in excess of 60 percent thereafter is remanded. Entitlement to a total disability rating due to unemployability (TDIU) for the period from December 30, 2013 to September 14, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1946 to December 1946, from September 1948 to September 1949 and from September 1951 to September 1955. This matter came before the Board of Veterans Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). March 2018 and July 2019 Board decision remanded the issues on appeal for further development. An October 2019 rating decision changed the ratings for the Veteran’s right and left lower extremities from residuals of cold injuries (rated at 30 percent) to right and left lower extremity sciatic nerve (rated at 40 percent) and femoral nerve (rated at 30 percent), effective September 14, 2019. The decision also granted TDIU effective September 14, 2019. Because higher ratings for these disabilities are assignable during the relevant time period and the Veteran is presumed to seek the maximum available benefit, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 30 percent prior to September 14, 2019 for service-connected residual of a cold injury, right lower extremity (now rated as sciatic nerve right lower extremity and femoral nerve right lower extremity) and in excess of 60 percent thereafter is remanded. 2. Entitlement to a rating in excess of 30 percent prior to September 14, 2019 for service-connected residual of a cold injury, left lower extremity (now rated as sciatic nerve left lower extremity and femoral nerve left lower extremity) and in excess of 60 percent thereafter is remanded. The July 2019 Board decision remanded the issues of increased ratings for the bilateral lower extremity cold injuries as the VA examinations of record had failed to perform EMG and nerve conduction studies, as requested in the March 2018 Board decision. The July 2019 Board decision therefore ordered new examinations, specifically stating in the remand directives that “EMG and nerve conduction studies should be performed.” A September 2019 VA peripheral nerves examination diagnosed impairments of the sciatic and femoral nerve, however the diagnostic testing portion of the report indicates no EMG studies were performed and there were no other significant diagnostic test findings. The only EMG results noted in the report were the 2008 EMG/NCS. The examiner did not explain why EMG and nerve conduction studies were not performed, so the Board cannot be certain that they were not indicated. Therefore, the Board must remand the issues on appeal for the second time due to failure to comply with a request for EMG and nerve conduction studies. Stegall v. West, 11 Vet. App. 268 (1998). Upon remand, the examiner must either perform EMG and nerve conduction studies as requested or provide an explanation why such studies are not required. The examiner should also opine whether the 2008 EMG/NCS studies of record indicate that the Veteran’s diagnosed nerve impairments likely existed at that time. 3. Entitlement to a total disability rating due to unemployability (TDIU) for the period from December 30, 2013 to September 14, 2019 is remanded. While the Board regrets additional delay, the issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issue of increased ratings for the left and right lower extremity cold injury residuals. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his bilateral lower extremity nerve disabilities, to include the sciatic and femoral nerve. The examiner should review the file and provide a complete rationale for all opinions expressed. EMG and nerve conduction studies should be performed. If the examiner finds that EMG and nerve conduction studies are not required, the examiner should clearly explain why that is the case. The examiner should also provide an opinion regarding whether the 2008 EMG/NCS results indicate that the Veteran’s bilateral lower extremity nerve impairments likely existed at that time. The examiner should also provide an opinion regarding the functional impact of the Veteran’s lower extremity peripheral neuropathy upon his ability to work. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.