Citation Nr: 20047548 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 14-33 680 DATE: July 16, 2020 REMANDED Entitlement to an effective date earlier than December 22, 2009 for the assignment of an increased 30 percent disability rating for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an effective date earlier than December 22, 2009 for the assignment of an increased 30 percent disability rating for peripheral neuropathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1964 to November 1969. In May 2018, the Veteran testified at a Board of Veterans’ Appeals (Board) videoconference hearing before the undersigned. A transcript of the hearing is of record. In September 2018, the Board remanded the appeal for further evidentiary development. Earlier Effective Date Claims The Veteran seeks entitlement to an effective date earlier than December 22, 2009 for the assignment of increased 30 percent ratings for peripheral neuropathy of the lower extremities. In its September 2018 remand, the Board requested a VA medical opinion to assist in determining the severity of his peripheral neuropathy prior to December 22, 2009. The Board requested that such an opinion “discuss the Veteran’s history of treatment for pain and numbness of the lower extremities” from June 2003 to December 2009, to include mobility issues resulting from his peripheral neuropathy. (The Veteran testified at his Board hearing that he was forced to acquire a motorized scooter in approximately 2005 due to mobility problems resulting from his peripheral neuropathy.) The Board also requested that a clinician “discuss and attempt to reconcile” a January 2004 VA examination report and a July 2014 VA medical opinion, which attributed the Veteran’s gait and mobility problems to his congestive heart failure and peripheral neuropathy, respectively. Finally, the Board requested that a clinician “review and discuss the Veteran’s lay statements with respect to his peripheral neuropathy symptoms, including testimony provided at his May 2018 Board hearing.” Subsequent to the Board’s remand, a VA staff physician provided opinions in June 2019 and September 2019. The June 2019 opinion included a conclusory statement that the Veteran’s peripheral neuropathy was “severe from 12/22/09.” By way of rationale, the physician stated the following: “[P]rogressed to the point of today, [the Veteran’s] numbness in both feet is at the maximum.” The physician acknowledged the January 2004 VA examination report’s finding of mild decreased sensation, as well as a May 2009 neurosurgery consult note indicating the Veteran’s reports of lower back, thigh, and buttock pain, but did not provide any meaningful discussion of the significance of these records. The physician likewise did not address either the July 2014 VA medical opinion or any of the Veteran’s lay statements, to include the question of whether his peripheral neuropathy was the cause of his mobility issues prior to December 2009. In August 2019, a VA Compensation and Pension (C&P) employee determined that the June 2019 opinion failed to comply with the Board’s remand instructions, and requested a clarifying opinion. In September 2019, the VA staff physician submitted an addendum that is functionally identical to his June 2019 opinion. A Board remand confers upon claimants, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, as was correctly noted by the VA C&P employee in August 2019, the VA staff physician’s June 2019 opinion fails to adequately respond to the Board’s remand directives. The C&P employee was right to request a clarification, and it is unfortunately that the staff physician simply restated his original, inadequate opinion in a subsequent “clarification.” This has resulted in undue delay to the Veteran, as a remand is once again required to ensure that there has been substantial compliance with the Board’s prior remand directives. On remand, the Board requests that a different clinician be asked to review the claims file and provide the necessary information. The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate clinician regarding the severity of the Veteran’s bilateral lower extremity peripheral neuropathy prior to December 22, 2009. The opinion should be authored by a clinician other than the staff physician who authored the June 2019 and September 2019 opinions. After reviewing the entire record (including the Board’s September 2018 remand), the clinician should opine as to whether, at any point from June 2003 to December 22, 2009, the Veteran’s bilateral peripheral neuropathy of the lower extremities could at least as likely as not be described as “severe” pursuant to the criteria listed in 38 C.F.R. § 4.124(a), Diagnostic Codes (DCs) 8521 and 8621. The clinician is specifically asked to discuss the Veteran’s history of treatment for pain and numbness of the lower extremities, as well as his reported mobility issues, including his documented need for a motorized scooter in 2004. The clinician should discuss and attempt to reconcile the January 2004 VA examination report and July 2014 VA medical opinion of record, which attribute the Veteran’s gait and mobility problems to his congestive heart failure and peripheral neuropathy, respectively. The clinician should also review and discuss the Veteran’s lay statements with respect to his peripheral neuropathy symptoms, including testimony provided at his May 2018 Board hearing. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, 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.