Citation Nr: 21000475 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 10-25 269 DATE: January 5, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent prior to October 17, 2016, for service-connected right wrist peripheral neuropathy is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to October 17, 2016, for service-connected left wrist peripheral neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from October 1974 to March 1975, and on active duty for training from June to July 1975, June to July 1976, and from July to August 1977. These matters have a long procedural history and come before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The July 2008 rating decision denied entitlement to increased ratings in excess of 10 percent for the left and right wrist peripheral neuropathy (previously characterized as carpal tunnel syndrome) and arthritis. In a February 2014 decision, the Board denied the claims for entitlement to disability ratings in excess of 10 percent for right wrist peripheral neuropathy, left wrist peripheral neuropathy, right wrist degenerative arthritis, and left wrist degenerative arthritis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In August 2014, the Court returned the case the Board for action consistent with a Joint Motion for Partial Remand (JMPR). In the 2014 JMPR, the parties agreed that remand of the Veteran’s claims for entitlement to disability ratings in excess of 10 percent for right and left wrist peripheral neuropathy was required because the Board did not provide adequate consideration of relevant rating criteria in determining whether a higher disability rating was warranted. The Board decision as to entitlement to a disability rating in excess of 10 percent for right and left wrist degenerative arthritis was affirmed as the Veteran did not pursue an appeal of these issues. The Board next issued a decision in December 2014 that denied entitlement to disability ratings in excess of 10 percent for right and left wrist peripheral neuropathy. The Veteran again appealed to the Court. In April 2016, the Court returned the case the Board for action consistent with an April 2016 Joint Motion for Remand (JMR). In the 2016 JMR, the parties agreed that the Board failed to explain what consideration, if any, it gave to relevant medical evidence of record and why it found such evidence persuasive or unpersuasive or explain the reasons for its rejection of such evidence. The parties stated that the Board did not address medical evidence from a December 2000 VA joints examination showing that the Veteran was found to have a positive Phalen’s bilaterally, a positive Tinel’s sign bilaterally ,and “a positive ulnar nerve palpation on the left elbow;” an April 2004 VA examiner’s report finding positive Tinel’s sign bilaterally, borderline Phalen’s sign, and slight weakness in the median nerve muscle groups, right hand; and an April 2010 VA examiner’s report finding that the Veteran had a positive Tinel’s sign on the left with “pain into ulnar side of hand.” The parties agreed that the Board’s failure to discuss this evidence rendered its statement of reasons and bases inadequate. In May 2016, the Board remanded this appeal for a medical opinion consistent with the 2016 JMR. A November 2016 rating decision assigned a 20 percent disability rating to the service-connected right wrist peripheral neuropathy and a 20 percent rating to the service-connected left wrist peripheral neuropathy, both effective October 17, 2016. In April 2017, the Board denied entitlement to disability ratings in excess of 10 percent for right and left wrist peripheral neuropathy prior to October 17, 2016, and denied entitlement to disability ratings in excess of 20 percent for right and left wrist peripheral neuropathy from October 17, 2016. The Veteran again appealed to the Court. A JMPR was filed in October 2017 and the Court issued an Order returning the case to the Board for action consistent with the 2017 JMPR. The appeal has since been before the Board in December 2017 and January 2020. 1. Entitlement to an initial disability rating in excess of 10 percent prior to October 17, 2016, for service-connected right wrist peripheral neuropathy is remanded. 2. Entitlement to an initial disability rating in excess of 10 percent prior to October 17, 2016, for service-connected left wrist peripheral neuropathy is remanded. After careful review of the evidence, and for reasons expressed directly below, the Board finds that this issue must again be remanded for further development. The Board regrets the delay associated with this remand but finds that it is necessary to ensure that the Veteran is accorded full compliance with VA’s statutory duties. As noted above, since the 2017 JMPR, the Veteran’s appeal was before the Board in December 2017 and January 2020. The parties to the October 2017 JMPR noted that, in the April 2017 decision, the Board failed to ensure substantial compliance with the May 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, in December 2017, the Board noted that, although the Veteran underwent a VA examination in October 2016, the VA examiner did not address the clinical significance of the medical evidence referenced in the April 2016 JMR. In January 2020, the Board found that there was not substantial compliance via an August 2019 VA examination. The Board again remanded the issues on appeal so that the Veteran could be afforded a new VA examination, and it once again directed the VA examiner to specifically address the clinical significance of the findings contained in December 2000, April 2004, and April 2010 VA examination reports. A September 2020 VA examiner found that the Veteran did not have current peripheral neuropathy. It was noted that although prior examinations documented positive Tinel signs and Phalen, there was nothing on examination to support a diagnosis of peripheral neuropathy. The examiner indicated that prior nerve conduction studies and electromyographs and that the condition had resolved or been misdiagnosed. There was no discussion regarding the positive findings in earlier reports as requested. This opinion again fails to provide sufficient information on which to make a decision on the Veteran’s bilateral wrist peripheral disability. The Board is obligated by law to ensure that the RO complies with its directives, as well as those of the Court. The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, these issues must once again be remanded in order to complete the development requested by the Court. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. As noted in the Board’s December 2017 and January 2020 remand, entitlement to a TDIU is inextricably intertwined with his claims for higher initial ratings for service-connected bilateral wrist peripheral neuropathies. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Board will defer consideration of that matter at this time.   These matters are again REMANDED for the following action: 1. Obtain an addendum opinion from the September 2020 examiner or other qualified clinician regarding the severity of the Veteran’s service-connected bilateral wrist peripheral neuropathies prior to October 17, 2016. The claims file, including a copy of this Remand must be provided. **In formulating the requested opinion, the clinician is to assume the Veteran had bilateral wrist peripheral neuropathy prior to October 17, 2016.** Following a review of the record, the clinician must address the following: a) The examiner should describe the severity of the bilateral wrist peripheral neuropathy and/or all pertinent neurologic manifestations associated with the Veteran’s service-connected bilateral wrist peripheral neuropathies prior to October 17, 2016. b) The examiner should indicate which nerves of the bilateral wrists are involved and, for the affected nerve(s), the examiner should indicate the severity of the disabilities or whether there has been complete or incomplete paralysis of the affected nerve(s) prior to October 17, 2016. If there is incomplete paralysis, the examiner should describe the severity of the impairment as mild, moderate, or severe. ***In providing the above requested opinions, the examiner MUST specifically discuss the clinical significance of the medical evidence cited in the April 2016 Joint Motion for Remand as it pertains to the level of impairment caused by the Veteran’s right and left wrist peripheral neuropathies prior to October 2016, which includes the following: i) a December 2000 VA joints examination showing the Veteran was found to have a positive Phalen’s bilaterally, a positive Tinel’s sign bilaterally, and “a positive ulnar nerve palpation on the left elbow;” ii) an April 2004 VA examiner’s report finding positive Tinel’s sign bilaterally, borderline Phalen’s sign, and slight weakness in the median nerve muscle groups, right hand; and iii) an April 2010 VA examiner’s report finding that the Veteran had a positive Tinel’s sign on the left with “pain into ulnar side of hand.” (Continued on the next page)   A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.