Citation Nr: 21002110 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 09-48 664 DATE: January 12, 2021 REMANDED Entitlement to an initial rating higher than 10 percent for sciatic nerve paralysis, right lower extremity from December 7, 2007 to October 23, 2011 is remanded. Entitlement to a rating in excess of 20 percent for sciatic nerve paralysis, right lower extremity since October 24, 2011 is remanded. Entitlement to an initial rating higher than 10 percent for sciatic nerve paralysis, left lower extremity from December 7, 2007 to October 23, 2011 is remanded. Entitlement to a rating in excess of 20 percent for sciatic nerve paralysis, left lower extremity from October 24, 2011 to April 5, 2015 is remanded. Entitlement to a rating in excess of 40 percent for sciatic nerve paralysis, left lower extremity since April 6, 2015 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from August 1974 to October 1978. This appeal arises from a March 2009 rating decision, which granted service connection for sciatic nerve paralysis of the bilateral lower extremities, associated with service-connected degenerative disc disease (DDD) of the lumbar spine, and assigned initial 0 percent ratings (noncompensable) for each side. The Veteran appealed for higher initial ratings. The Veteran testified at a Board hearing at the RO (Travel Board) in September 2011, before a former Veterans Law Judge (VLJ). A transcript is of record. The issue of a TDIU was raised at her Board hearing. See September 2011 Board hearing, at 23. The Veteran has been unemployed since 1994. She maintains that her unemployment is due to her service-connected sciatic nerve paralysis of the bilateral lower extremities. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Thus, the issue of a TDIU is also on appeal before the Board. In January 2018, the Board remanded the case to the AOJ for additional development and consideration. In September 2020, the Veteran was notified that the VLJ who conducted the September 2011 hearing was no longer available to decide her appeal. The Veteran was provided the opportunity to testify at another hearing but she did not respond to the letter. As the Veteran did not seek another hearing, the Board proceeds to address the claim on appeal. The file is again before the Board for further appellate review. 1. Entitlement to a compensable initial rating for sciatic nerve paralysis, left lower extremity from December 7, 2007 to October 23, 2011. 2. Entitlement to a rating in excess of 20 percent for sciatic nerve paralysis, left lower extremity from October 24, 2011 to April 5, 2015. 3. Entitlement to a rating in excess of 40 percent for sciatic nerve paralysis, left lower extremity since April 6, 2015. 4. Entitlement to a compensable initial rating for sciatic nerve paralysis, right lower extremity from December 7, 2007 to October 23, 2011. 5. Entitlement to a rating in excess of 40 percent for sciatic nerve paralysis, right lower extremity since April 6, 2015. 6. Entitlement to a TDIU. The Board primarily remanded the claims in January 2018 for the AOJ to arrange for VA examinations to assess the current severity of the sciatic nerve paralysis disabilities, since provided in January 2019, and to provide retrospective medical opinions on the prior severity of these disabilities, since provided in March 2018 and September 2018. On remand, as a preliminary matter, the AOJ should clarify the procedural stance of the proposed reduction of sciatic nerve paralysis of the lower left extremity. The AOJ’s March 2019 rating decision proposed to decrease the current rating for sciatic nerve paralysis of the lower left extremity, from 40 percent to 0 percent. In response, the Veteran sought a hearing on the proposed reduction. In an August 2020 informal hearing conference report, the AOJ noted the Veteran is requesting a statement from her private doctor, although this was not subsequently submitted. However, the AOJ has issued two nearly concurrent and conflicting rating decisions in November 2020 on the status of the proposed reduction. A November 3, 2020 rating decision effectuated a reduction of sciatic nerve paralysis of the lower left extremity, from 40 percent to 0 percent; whereas, a November 13, 2020 rating decision found no improvement of the disability and a reduction was not warranted. So, a remand is necessary for the AOJ to clarify the current disability rating of the sciatic nerve paralysis of the left lower extremity. Clarifying medical opinion is also needed on the TDIU issue. The Board also remanded these claims for the AOJ to obtain a medical opinion regarding occupational impairments from the sciatic nerve paralysis disabilities to resolve the TDIU issue. On remand, there is conflicting evidence on occupational impairment due to service-connected disabilities. In November 2018, a nurse practitioner who examined the Veteran’s back condition in February 2018 commented that the Veteran has limitations due to service connected back/sciatic conditions, and that the Veteran is unable to lift, push heavy weights. The examiner added that the Veteran’s prolonged standing and sitting is limited but would require accommodations/rest breaks. The examiner opined that “The veteran may be able to seek sedentary employment if she was able to have frequent breaks and accommodations. She is able to use a computer and able to do research for her claim.” The Veteran had an occupational history as house sitter, housekeeper, childcare giver, retail worker and secretarial work. It is unclear if, without these accommodations, her service-connected sciatic nerve paralysis disabilities would render her unable to maintain gainful employment. Further, the January 2019 VA peripheral nerves examiner found her sciatic nerve was normal for the bilateral lower extremities and produced no functional impairment. Nonetheless, the January 2019 VA back conditions examiner found that, “Work is limited due to back condition. Limitations include heavy/moderate physical work, HEAVY lifting pushing, pulling, prolonged standing or sitting, working at heights or jobs requiring balance.” When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Additional medical comment is in necessary to reconcile the conflicting medical findings on any occupational impairment due to her service-connected disabilities, without speculation as to the possibility of frequent breaks and accommodations. Lastly, the August 2020 informal conference report that there are potentially outstanding private treatment records. On remand, the AOJ should ask the Veteran to identify such records, and if she does, attempt to obtain them. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated the Veteran for her sciatic nerve and low back problems. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. 2. The AOJ must clarify the current disability rating of the sciatic nerve paralysis of the left lower extremity. Specifically, clarify the conflicting ratings in a November 3, 2020 rating decision that effectuated a reduction of sciatic nerve paralysis of the lower left extremity, from 40 percent to 0 percent; and a November 13, 2020 rating decision that a reduction was not warranted. 3. Obtain an addendum medical opinion from the VA examiners who provided a November 2018 opinion and the January 2019 VA nerves and back examination. If unavailable, request a medical opinion from an appropriately qualified medical professional. The claims folder must be reviewed. The examiner(s) should identify all limitations or functional impairment caused solely by her sciatic nerve paralysis disabilities of the left lower extremity and right lower extremity, respectively. Also identify all limitations or functional impairment that would be caused by all of her service-connected disabilities (i.e., including the service-connected lumbar spine disability) in combination. The examiner(s) should avoid speculation on the possibility of accommodations, such as breaks and limitation of work duties. (Continued on the next page)   Rationale must be provided for the opinions proffered. Reconcile any conflicting medical findings on whether the Veteran exhibited any occupational impairment due to her service-connected disabilities. In offering opinions, the examiner(s) should consider the Veteran’s civilian work history as a house sitter, housekeeper, childcare giver, retail worker and secretarial work. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.