Citation Nr: 20021230 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 14-03 107 DATE: March 25, 2020 REMANDED Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the right upper extremity is remanded. Entitlement to an evaluation in excess of 10 percent for peripheral neuropathy of the left upper extremity is remanded. Entitlement to an evaluation in excess of 10 percent, increased to 20 percent effective May 14, 2018, for peripheral neuropathy of the right lower extremity is remanded. Entitlement to an evaluation in excess of 10 percent, increased to 20 percent effective May 14, 2018, for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded.   REASONS FOR REMAND The Veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a May 2017 videoconference hearing. A copy of the transcript is associated with the record. Pursuant to testimony at the May 2017 Board hearing, the Board finds that the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board previously remanded these claims for further development in December 2017. The Veteran contends that he is entitled to increased ratings for his peripheral neuropathy of the upper and lower bilateral extremities. During the May 2017 Board hearing, the Veteran’s work supervisor testified that the Veteran’s neuropathy has rendered him unemployable. The supervisor noted the Veteran has problems with his hands as well as walking. The Veteran testified that pain medication prescribed for this condition affects his ability to work and makes him light headed. The Veteran described pain and weakness related to his neuropathy, which had resulted in more than a dozen falls in the year prior to the May 2017 Board hearing. The Veteran also testified he uses a cane due to his neuropathy. The Veteran was afforded a VA examination for his neuropathy of the bilateral extremities in May 2018. The examiner noted the Veteran experienced only mild constant pain and numbness in both the bilateral upper and lower extremities. Additionally, normal strength was assessed, and reflex testing was normal with the exception of the ankles. The examiner opined that the peripheral neuropathy would not impact the Veteran’s ability of work but provided no rationale in support of this conclusion. In January 2020, the Court of Appeals for Veterans Claims ruled in Miller v. Wilkie, No. 18-2796, 2020 U.S. App. Vet. Claims (Vet. App. January 16, 2020), that that when a VA examiner fails to address relevant lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination. The Board finds the Veteran is competent to observe lay symptoms such as pain and weakness associated with his peripheral neuropathy of the bilateral extremities. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, the Veteran’s testimony is credible as it is consistent with treatment records that report severe neuropathy. Accordingly, the appropriate remedy is to obtain a new VA examination that considers the Veteran’s lay statements, including side effects of his medication and use of a cane on his ability to work. Further, in November 2018, the Veteran submitted a medical opinion from a private provider that reported the Veteran was in constant severe pain in all of his extremities. The private provider noted decreased strength and decreased reflexes in both the bilateral upper and lower extremities. Given the inconsistencies between the severity of symptoms between the May 2018 VA examination the November 2018 private opinion, the Board is of the opinion that a new VA examination should be provided to adequately assess the current severity of the Veteran’s peripheral neuropathy of the bilateral extremities. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Contact the Veteran requesting any relevant private treatment records or authorization to obtain such records. 2. Schedule the Veteran for a VA examination to determine the current nature, severity, and prescribed treatment for his service-connected peripheral neuropathy of the upper and lower extremities. The examination must include all physical and diagnostic testing deemed necessary by the examiner in conjunction with this request. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. The examiner must specifically address the Veteran’s lay contentions, including his testimony during the May 2017 Board hearing, such as any pain or weakness he experiences due to his service-connected peripheral neuropathy of the upper and lower extremities. The use of a cane or any other assistive devices should be noted. The side effects of any medication prescribed to treat the symptoms of peripheral neuropathy should also be addressed when discussing the impact of these service-connected disabilities on the Veteran’s ability to perform work. Reconcile any findings regarding the severity of symptoms with the November 2018 private opinion regarding the Veteran’s peripheral neuropathy of the upper and lower extremities. (Continued on the next page)   3. Then, readjudicate the Veteran’s claims, including entitlement to a TDIU. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC). After the Veteran has been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Keogh, 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.