Citation Nr: 21002374 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 20-30 520 DATE: January 13, 2021 REMANDED Entitlement to a rating in excess of 40 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 40 percent for right lower extremity peripheral neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to February 1986. During the course of the current appeal, including in a November 2020 brief, the Veteran’s attorney has raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU rating) due in part to the Veteran’s service-connected left and right lower extremity peripheral neuropathy disabilities as well as due to his other service-connected disabilities (including lumbosacral spine osteoarthritis). See Rice v. Shinseki, 22 Vet. App. 447 (2009). In August 2020, the Board remanded the issues of entitlement to a rating in excess of 10 percent for the Veteran’s lumbar spine disability from September 20, 2012 and entitlement to a TDIU rating to the Agency of Original Jurisdiction (AOJ) for additional evidentiary development. Because the record reflects that the AOJ is still in the process of completing this development on remand, including for the TDIU rating issue, the Board finds that it would be premature to decide the TDIU rating claim at this time. Accordingly, the TDIU rating claim will be addressed at a later time in conjunction with the lumbar spine increased rating claim currently in remand status. 1. Entitlement to a rating in excess of 40 percent for left lower extremity peripheral neuropathy. 2. Entitlement to a rating in excess of 40 percent for right lower extremity peripheral neuropathy. The Veteran filed the instant claim for increased ratings for his service-connected left and right lower extremity peripheral neuropathy disabilities on December 19, 2016. Therefore, for purposes of this appeal, the evaluation period begins on December 19, 2015 (i.e., one year prior to the date that the instant increased rating claim for these disabilities was received by VA). The June 2017 rating decision on appeal denied a rating in excess of the 40 percent rating already assigned for left lower extremity peripheral neuropathy and denied a rating in excess of the 40 percent rating already assigned for right lower extremity peripheral neuropathy. In his August 2017 notice of disagreement (NOD), the Veteran disagreed with the denial of a rating in excess of 40 percent for each of those disabilities. [The Veteran also indicated on his August 2017 NOD that he wished to appeal an “effective date” issue regarding these disabilities; however, the Board finds that such a contention is invalid in light of the June 2017 rating decision not assigning any new effective dates for such disabilities. Consequently, the Board finds that there are no freestanding effective date issues currently on appeal with regard to the Veteran’s left and right lower extremity peripheral neuropathy disabilities. Furthermore, the Board’s adjudication of the increased rating issues for such disabilities will simultaneously address any effective date concerns for all ratings which may be assigned within the current evaluation period (which begins on December 19, 2015, as noted above).]   The record reflects that the Veteran most recently underwent a VA peripheral nerves examination in April 2017. At that examination, he reported having severe paresthesias and/or dysesthesias in both lower extremities. It was also noted that he did not have muscle atrophy. The examiner opined that the Veteran had mild incomplete paralysis of his left and right sciatic nerves. It was noted that no electromyography (EMG) studies were performed in conjunction with that examination. When asked to describe the impact of his left and right lower extremity peripheral neuropathy disabilities on his ability to work, the Veteran stated: “I still walk and get around. I have to protect my feet because I don’t feel as well. I go to VA podiatry every 6 months.” In a June 2017 addendum, a different VA medical provider noted that walking for the Veteran was not precluded by his left and right lower extremity peripheral neuropathy disabilities. Thereafter, the evidence of record includes the following pertinent findings. In a November 2017 private vocational assessment, a vocational provider noted the Veteran’s report that he could walk about 25 to 30 steps before needing to sit and rest his back and lower extremities. In an April 2019 VA treatment record, he reported constant burning pain in his left foot, with aggravating factors noted to be walking and standing. In a June 2020 private vocational assessment, a vocational counselor noted the Veteran’s report that he “holds onto furniture and walls when standing and ambulating due to bilateral lower extremity weakness” and that he could walk a maximum of 25 to 30 steps “while holding onto objects due to pain and bilateral lower extremity numbness.” On remand, after all outstanding treatment records have been associated with the claims file (to include any updated private treatment records from Baptist Health, as the record reflects that records were last obtained from that provider in September 2018 and then a September 2019 VA treatment record noted that the Veteran continued to receive primary care treatment at Baptist Health), a new examination should be scheduled to ascertain the current level of severity for the Veteran’s left and right lower extremity peripheral neuropathy disabilities, as there is an indication that the conditions may have worsened since his last VA examination.   The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his left and right lower extremity peripheral neuropathy disabilities on appeal at any time during the appeal period, including from Baptist Health. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from August 2020 to the present. 3. After all requested records have been associated with the claims file, schedule the Veteran for an examination by an appropriate clinician (or a telehealth interview if an in-person examination is not feasible) to determine the current severity of his service-connected left and right lower extremity peripheral neuropathy disabilities. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. All pertinent symptomatology and findings must be reported in detail. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or   testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, Counsel The Board’s decision in this case is binding only with respect to the instant matter(s) decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.