Citation Nr: 20033461 Decision Date: 05/13/20 Archive Date: 05/13/20 DOCKET NO. 14-15 128 DATE: May 13, 2020 REMANDED Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to service-connected disabilities is remanded. Entitlement to a rating greater than 30 percent for status-post avulsion fracture of the left distal fibula and multiple ankle sprains with residuals is remanded. Entitlement to a compensable rating prior to October 23, 2018, and greater than 10 percent since, for degenerative joint disease of the right knee is remanded. Entitlement to a compensable rating prior to October 23, 2018, and greater than 10 percent since, for left knee strain is remanded. REASONS FOR REMAND The Veteran had active military service from September 1978 to November 1985. In September 2017 the Veteran was afforded a video conference hearing before the Board, and a transcript has been associated with the record. In April 2018 the Board remanded this appeal for further development to include obtaining adequate VA examinations for the disabilities on appeal. See April 3, 2018, Board Decision. The Board observes that the October 2018 VA examiner noted there was peripheral neuropathy of the upper extremities; however, based on his description of the claim and related symptoms, the appeal has been one for peripheral neuropathy of the lower extremities. See October 23, 2018, Peripheral Nerves Conditions Disability Benefits Questionnaire. If the Veteran wishes to claim service connection for peripheral neuropathy of the upper extremities, he and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2018). In an August 2019 rating decision, the RO awarded a 10 percent rating, each, effective October 23, 2018 for degenerative joint disease of the right knee, and the left knee. See August 27, 2019, Rating Decision. This represents only a partial grant, such that the claim for an increased rating remains on appeal. In February 2020 a letter was sent to the Veteran discussing the option for a panel hearing, which the Veteran did not elect. See February 13, 2020, Board Letter. The Board observes that this letter was sent in error. 1. Entitlement to service connection for peripheral neuropathy of the lower extremities, to include as secondary to service-connected disabilities is remanded. In June 2010 the Veteran filed his claim for service connection for peripheral neuropathy. See June 2010, Statement in Support of Claim. In its April 2018 Board remand it was noted that the May 2011 VA examiner did not provide adequate reasoning to substantiate the negative opinion. As such, the Board remanded for another VA examination to obtain a nexus opinion on a direct and secondary basis, and specifically requested that the examiner comment on an Internet article regarding injuries leading to nerve damage, which the Veteran submitted in support of his claim. See April 2014, Correspondence. Although the Veteran was afforded another VA examination in October 2018, this examiner did not provide any discussion as to the Internet article. Given such, remand is warranted based on Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to a rating greater than 30 percent for status-post avulsion fracture of the left distal fibula and multiple ankle sprains with residuals is remanded. The Veteran filed a claim for increase in his service-connected status-post avulsion fracture of the left distal fibula and multiple ankle sprains in June 2010, such that the appellate period is from one year prior, or June 2009. See June 2010, Statement in Support of Claim. Although an October 2018 VA examination was provided, it did not provide a retrospective opinion, and the Board finds that a November 2010 VA examination did not conform with Correia and Sharp, and it is necessary to obtain a retrospective examination. See Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017); see Correia v. McDonald, 28 Vet. App. 158, 170 (2016); see Chotta v. Peake, 22 Vet. App. 80, 85 (2008); see November 2010, VA Examination Joints; see October 2018, Ankle Conditions Disability Benefits Questionnaire. The examiner should address the Veteran’s lay statements when addressing the functional limitations, to include reports of severe, constant, weekly flare-ups. 3. Entitlement to a compensable rating prior to October 23, 2018, and greater than 10 percent since, for degenerative joint disease of the right knee is remanded. 4. Entitlement to a compensable rating prior to October 23, 2018, and greater than 10 percent since, for left knee strain is remanded. In June 2010 the Veteran filed a claim for increased compensation for his right and left knee service-connected disabilities, such that the appellate period is from one year prior, or June 2009. See June 2010, Statement in Support of Claim. In April 2018 the Board remanded for VA examination, to include meeting the Correia and Sharp requirements. See Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017); see Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Although the Veteran was afforded an October 2018 VA examination wherein the examiner commented that there was pain on passive range of motion testing, and no evidence of pain on non-weight bearing testing, he failed to provide range of motion testing in active motion, passive motion, weight bearing, and non-weight bearing, or otherwise indicate that the testing was not necessary. See October 23, 2018, Knee and Lower Leg Conditions Disability Benefits Questionnaire. Thus, this opinion does not substantially comply with the Board’s April 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Remand for a new examination is necessary. Additionally, a retrospective medical opinion, to capture the severity of the right and left knee disabilities, to include additional limitations of motion due to functional loss, and during flare-ups or on repeated use over time, for the entire appeal period should be obtained. Chotta v. Peake, 22 Vet. App. 80, 85 (2008). The matters are REMANDED for the following action: The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 1. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of any peripheral neuropathy of the lower extremities. The examiner must opine whether any peripheral neuropathy of the lower extremities is at least as likely as not related to an in-service injury, event, or disease, including in service avulsion fracture of the distal fibula, and ankle sprain injury. Secondary service connection – whether it is at least as likely as not the Veteran’s peripheral neuropathy of the left or right lower extremities underwent any incremental increase in disability, regardless of its permanence, due to service-connected disability, particularly (a) degenerative joint disease of the right knee, (b) left knee strain, and (c) status-post avulsion fracture of the left distal fibula and multiple ankle sprain residuals. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. A complete rationale for ALL requested opinions is REQUIRED. The examiner must discuss the Internet article submitted in April 2014 regarding causes of peripheral neuropathy, and address any relevance to the Veteran’s claim. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected (I) status-post avulsion fracture of the left distal fibula and multiple ankle sprains; (II) degenerative joint disease of the right knee; and (III) left knee strain. The examiner should conduct range of motion testing for each condition (I)-(III) (expressed in degrees) in active motion, passive motion, and weight-bearing and nonweight-bearing settings. If any of the range of motion testing is unable to be performed, a complete explanation for why this is so must be provided. The examiner is specifically asked to set forth the extent of any functional loss due to weakened movement, excess fatigability, incoordination, pain on use, swelling, deformity, or atrophy of disuse. If pain on motion is observed, the examiner should indicate the point at which pain begins (expressed in degrees). The examiner should ask the Veteran if he experiences any flare-ups of his conditions (I)-(III). If so, the examiner should describe the frequency, severity, and duration of the Veteran’s flare-ups. It is also imperative that the examiner comment on the functional limitations due to pain and/or any of the other symptoms noted above caused by flare-ups and repetitive use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limitation of motion. If the examination does not take place during a flare-up or after repeated use over time, the examiner should attempt to offer an estimate derived from the information procured from relevant sources, including the Veteran’s lay statements. The examiner should also provide a retrospective opinion concerning functional loss for each disability (I)-(III) for the period from June 2009 to the present. The examiner should discuss the November 2010 VA examination, to include reports of severe, constant, weekly flare-ups of his tibia and fibula impairment with ankle sprains; and right knee severe flare-ups every couple of weeks inhibiting his ability to walk. The examiner is asked to retrospectively assess additional functional impairment in terms of the degree of additional range of motion loss, prior range of motion, painful motion (and at what point it started), additional loss of motion after repetitions, and functional loss due to pain, considering active and passive motion as well as weight-bearing and nonweight-bearing considerations, throughout the claims period, if possible. A complete rationale for ALL requested opinions is REQUIRED. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barner, 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.