Citation Nr: 20021093 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-55 669 DATE: March 24, 2020 REMANDED 1. Entitlement to an increased rating for residuals of a right-knee surgical patella tendon repair, to include right-knee tendonitis, in excess of 10 percent for the periods from November 1, 2014, to August 3, 2014, and from November 1, 2017, is remanded. 2. Entitlement to an increased rating for neuropathy of the right-lower extremity in excess of 30 percent for the period from November 1, 2014, is remanded. REASONS FOR REMAND The Veteran had active service from October 1990 to October 2014. These matters are before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in May 2015, May 2017, August 2017, and later in August 2017. In October 2014, the Veteran applied for service connection for, inter alia, a right knee orthopedic disability (orthopedic disability), a neurological disability affecting his right lower extremity in the areas of his right knee and right thigh due to a peripheral nerve condition (neuropathy), and a neurological disability affecting his right lower extremity, to include in the area of his right thigh, due to a sciatic-nerve disorder (radiculopathy). In May 2015, the RO issued a rating decision awarding service connection for the Veteran’s neuropathy, radiculopathy, and orthopedic disability. Initially, the Veteran’s neuropathy and radiculopathy were rated at 10 percent each, while his orthopedic disability was rated as noncompensable. In August 2015, the Veteran filed a Notice of Disagreement as to the ratings of his neuropathy and orthopedic disability. In May 2017, the RO issued a rating decision evaluating his orthopedic disability at 10 percent effective the date of the claim. In August 2017, the RO issued a rating decision prospectively evaluating the Veteran’s orthopedic disability at 100 percent from August 4, 2017, to October 31, 2017, based on his then-upcoming surgery. The August 2017 rating also decision notified the Veteran that his orthopedic disability would be rated at 10 percent from November 1, 2017. Later in August 2017, the RO issued a rating decision evaluating the Veteran’s neuropathy at 30 percent effective the date of the claim. Therefore, at this juncture, the Veteran’s orthopedic disability has been rated at 10 percent during the entire period on appeal, short of the August 4, 2017, to October 31, 2017, period when it was rated at 100 percent, while the Veteran’s neuropathy has been rated at 30 percent during the entire period on appeal. However, in August 2017, a VA examiner who had previously addressed the Veteran’s claim based on neuropathy issued an addendum opinion, which clarified that there was insufficient evidence to conclude that the Veteran has been suffering from neuropathy. The VA examiner explained that the symptoms previously attributed to the Veteran’s neuropathy should have been characterized as symptoms of his orthopedic disability because his ruptured right-patellar tendon affected his quadriceps muscles and quadriceps tendon, causing muscle atrophy and the absence of his right-knee reflex. Given the VA examiner’s August 2017 addendum opinion, it appears that the Veteran did not suffer from neuropathy either during the entire period on appeal or at least a portion of the period on appeal. Further, the record demonstrates that, during the period on appeal, the Veteran has had numerous VA examinations with regard to his claims based on neuropathy, radiculopathy and orthopedic disability, and has described his functional limitations in similar terms. For instance, the Veteran provided descriptions such as having a “difficulty walking,” feeling “weakness” in his right-lower extremity, sensing that his right-lower extremity was “giving out,” and experiencing an “instability” of his right-lower extremity. Similarly, the record shows that the Veteran reported such symptoms as tingling and numbness in his right thigh during his VA examinations with regard to his claims based neuropathy and radiculopathy. In the same vein, the record is unclear as to whether the Veteran’s right-lower-extremity pain other than pain on flexion has been simultaneously attributed to more than one disability. An evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury that would permit ratings under several diagnostic codes. The critical element in the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Further, where the evidence shows distinct time periods, during which the disability exhibits symptoms that would warrant different ratings, “staged” ratings may be assigned for each such different period of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Here, it is currently not feasible to determine whether some of the Veteran’s symptoms reported during the period on appeal should have been attributed to his orthopedic disability or to his neuropathy, assuming such was present, or to his radiculopathy. Similarly, at the instant juncture, it is not feasible to determine whether the Veteran’s reports were reflective of the same, overlapping, or different symptom(s). Accordingly, while the Board regrets further delay, a remand is required before a decision may be rendered as to the Veteran’s claims for increased ratings for his neuropathy and orthopedic disability. See 38 C.F.R. § 20.802(a). The matters are REMANDED for the following action: 1. Request that the Veteran identify any outstanding post service private and VA treatment records relevant to his claims for increased ratings for his neuropathy and orthopedic disability. Provide the Veteran with the necessary authorization forms, attempt to obtain any identified records, and document any negative responses received. 2. After completing the foregoing and any other development deemed necessary, obtain an addendum opinion from the VA examiner who rendered the August 2017 addendum opinion (or, in the event this VA examiner is unavailable, from an appropriate VA clinician) to assist in the determination of the severity of the Veteran’s symptoms attributable to his orthopedic disability and neuropathy, that is, if the Veteran has suffered from neuropathy during at least a portion of the period on appeal. 3. Provide the VA examiner with the claims file, to include this Remand order. If the VA examiner determines that (s)he cannot discern the exact meaning of the Veteran’s reported functional limitations or sensations recorded during the April 2015, February 2017, and March 2017 VA examinations, schedule an in person examination of the Veteran so that he would be availed to an opportunity to describe to and/or demonstrate for the VA examiner these functional limitations and sensations. 4. The VA examiner is requested to: a. Clarify whether the Veteran has suffered from neuropathy during at least a portion of the period on appeal. If the examiner finds that the Veteran has suffered from neuropathy during at least a portion of the period on appeal, the examiner is requested to specify the duration(s) of such portion(s) of the period on appeal in terms of from month/date/year to month/date/year, and to explain his/her bases for selection of these dates. b. Specify the Veteran’s functional limitations and/or sensations that (i) were reported during the April 2015, February 2017, and March 2017 examinations, (ii) qualify as the same or overlapping symptom(s), but (iii) were described through the use of a different terminology. To illustrate, if the Veteran’s reports of difficulty walking, feeling weakness in his right lower extremity, sensing that his right-lower extremity was giving out, and experiencing an instability of his right-lower extremity were indicative of the same or overlapping symptom(s), the VA examiner is requested to list all of these descriptions and state, “all of these descriptions reflect the same or overlapping symptom(s).” c. Specify the Veteran’s identically-described symptoms, inclusive of but not limited to tingling in his right thigh, numbness in his right thigh, and various types of his right-lower-extremity pain that the Veteran’s reported in connection with more than one disability during his April 2015, February 2017, and March 2017 VA examinations. The VA examiner is requested to clarify whether each of these symptoms is best attributed to the Veteran’s neuropathy or to his radiculopathy, or to his orthopedic disability. d. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail either in a narrative fashion or as a table, subject to the VA examiner’s discretion. e. If an opinion as to any aspect of the aforesaid inquiries cannot be provided without resorting to speculation, the VA examiner is requested to provide an explanation as to why this is so and to clarify what additional development, if any, would permit the requested opinion to be rendered. 5. After completing the foregoing and any other development deemed necessary, readjudicate the Veteran’s claims for increased ratings for his neuropathy and orthopedic disability. 6. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity 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). The law requires that all claims that are remanded by the Board of Veterans’ Appeals for additional development must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan 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.