Citation Nr: 21004429 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-23 728 DATE: January 27, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for diabetic peripheral neuropathy of the right lower sciatic nerve is remanded. Entitlement to an initial rating in excess of 20 percent for diabetic peripheral neuropathy of the left lower sciatic nerve is remanded. Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy of the right lower femoral nerve is remanded. Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy of the left lower femoral nerve is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1968 to July 1970. The Veteran passed away in January 2019 and the Appellant is the Veteran’s daughter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In August 2015, the Board denied entitlement to a rating in excess of 10 percent for each of the Veteran’s service-connected right lower and left lower extremity neuropathy. He appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court). In a January 2017 Memorandum Decision, the Court vacated parts of the August 2015 Board decision that denied entitlement to initial ratings greater than 10 percent for peripheral neuropathy of the right and left lower extremities and remanded the issues for further development. The matter returned to the Board in July 2017 and the Board denied increased ratings in excess of 10 percent for the bilateral lower extremities. The Veteran again appealed the decision. In October 2018, the Court through another Memorandum Decision, vacated the July 2017 Board decision and remanded the matters for readjudication. In July 2019, the Court substituted the Veteran’s daughter as the Appellant in the appeal. The matter was most recently before the Board in December 2019, wherein the Board remanded for additional development. In a September 2020 rating decision, the RO granted an increase to 20 percent for diabetic peripheral neuropathy of the right lower extremity for the sciatic nerve and granted service connection with a 10 percent rating for diabetic peripheral neuropathy of the right lower extremity for the femoral nerve. In November 2020, the RO granted an increase to 20 percent for diabetic peripheral neuropathy of the left lower extremity for the sciatic nerve and granted service connection with a 10 percent rating for diabetic peripheral neuropathy of the left lower extremity for the femoral nerve. However, as the Veteran has not been granted the maximum benefit allowed for his lower extremity peripheral neuropathy disabilities for the entire appeal period, the claim is still active, as characterized on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Appellant’s claim so that she is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). As previously stated, the Court in its January 2017 Memorandum Decision vacated parts of the August 2015 Board decision as the Board did not explain why the Veteran’s symptoms amounted to only mild incomplete paralysis under Diagnostic Code 8520 or why they do not amount to moderate incomplete paralysis. The Court in the October 2018 Memorandum Decision found that the Board provided an inadequate statement of reasons or bases for finding that the impairment caused by the Veteran’s peripheral neuropathy was at most mild in severity. The Court explained that the Board’s analysis relied almost exclusively on sensory symptoms and limited consideration of the Veteran’s nerve-related pain and placed the greatest probative weight on the July 2013 VA examination report, which appears to have ignored the Veteran’s reported history of pain. The December 2019 Board decision remanded the issues for a retrospective medical opinion to determine the severity of the Veteran’s peripheral neuropathy throughout the appeal period. In this decision, the Board found that the relevant VA examination reports of record did not seem to include determinations regarding whether the Veteran’s peripheral neuropathy was mild, moderate, moderately severe, or severe, in accordance with the applicable rating criteria that take into consideration the Veteran’s lay statements regarding the severity of his symptomatology. 38 C.F.R. § 4.124(a), Diagnostic Code 8520. In this regard, the Veteran had previously reported that he had “red burning legs” which could hurt him for four to five hours at a time. See April 2012 VA treatment record. He later stated that he experienced leg pain daily. See May 2012 VA treatment record. In a June 2012 VA treatment record, the Veteran reported that he experienced nerve pain and burning in his legs that “stung like bees.” In October 2012, the Veteran complained of chronic, episodic weakness in his legs, during which he “can’t hardly walk” and which occur typically in the evening in two-hour intervals. See October 2012 VA treatment record. He reported that he experienced burning, throbbing pain on the bottom of both feet, so severe that it “takes his breath away” and that he was unable to walk to the bathroom without the assistance of crutches and a caregiver. See December 2012 VA treatment record. Also, in December 2012 he stated that when in the shower and his right foot is hit by water, the foot felt “as it is going to explode.” In February 2013, a VA treatment record documented that the Veteran experienced foot pain and a sensation like burning or needles, and that these problems were worsening over time. A VA treatment record from April 2013 documented that the Veteran reported that he is “unable to walk more than a few feet until his legs become so weak that he has to lower himself to the ground.” It was noted by the treating physician that the Veteran had a peripheral nerve disease with normal monofilament tests. In an August 2014 visit to the VA, the Veteran stated that his feet are so painful he can almost not walk and feels like he is walking on rocks. In July 2016, the Veteran again reported that his right leg feels like it is going to blow up. See July 2016 VA treatment record. In August 2016, he reported that he is having a hard time walking and may need a wheelchair. See August 2016 VA treatment record. The Veteran reported in October 2017 that his legs are killing him and can’t hold him up to even get to the bathroom twenty yards away. See October 2017 VA treatment record. In July 2020, a retrospective medical opinion was obtained by the RO. The VA examiner found that the Veteran had moderate incomplete paralysis of both the right and left sciatic nerves and he had mild incomplete paralysis of both the right and left femoral nerves. While the VA examiner stated that the Veteran had a sensory peripheral neuropathy of the right lower extremity and left lower extremity, he noted that it was characterized by mild paresthesias, mild numbness and moderate constant pain. He also stated that the Veteran had reduced light touch, reduced temperature, reduced vibration sensation, and absent position sense. It is unclear if the VA examiner considered the Veteran’s lay statements regarding the pain. The December 2019 Board remand instructions specifically instructed the examiner to address all symptoms when assigning a level of severity and support his or her conclusion with a discussion that the Board may rely upon in assigning a rating. In the VA examiner’s opinion, there is no reference to the Veteran’s lay statements regarding his lower extremity neuropathy. Additionally, the examiner did not explain how he came to his conclusions as to the severity of the lower extremity neuropathy. As such, the Board finds that remand is necessary to obtain an addendum opinion that adequately addresses the Veteran’s lay statements. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the VA provider who issued the July 2020 medical opinion (or if no longer available, an appropriate replacement). The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: The examiner is requested to opine as to whether the impairment found is equivalent to “mild,” “moderate,” “moderately severe,” or “severe” incomplete paralysis of the affective nerves for the right lower extremity radiculopathy (sciatic and femoral nerves) and left lower extremity radiculopathy (sciatic and femoral nerves). Or, in the alternative, if found, the examiner should also indicate if complete paralysis is found. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's post-service medical records and assertions. In particular, the examiner should consider the symptoms described above and repeated here: • The Veteran had previously reported that he had “red burning legs” which could hurt him for four to five hours at a time. See April 2012 VA treatment record. • He later stated that he experienced leg pain daily. See May 2012 VA treatment record. • In a June 2012 VA treatment record, the Veteran reported that he experienced nerve pain and burning in his legs that “stung like bees.” • In October 2012, the Veteran complained of chronic, episodic weakness in his legs, during which he “can’t hardly walk” and which occur typically in the evening in two-hour intervals. See October 2012 VA treatment record. • He reported that he experienced burning, throbbing pain on the bottom of both feet, so severe that it “takes his breath away” and that he was unable to walk to the bathroom without the assistance of crutches and a caregiver. See December 2012 VA treatment record. • Also, in December 2012 he stated that when in the shower and his right foot is hit by water, the foot felt “as it is going to explode.” • In February 2013, a VA treatment record documented that the Veteran experienced foot pain and a sensation like burning or needles, and that these problems were worsening over time. • A VA treatment record from April 2013 documented that the Veteran reported that he is “unable to walk more than a few feet until his legs become so weak that he has to lower himself to the ground.” It was noted by the treating physician that the Veteran had a peripheral nerve disease with normal monofilament tests. • In an August 2014 visit to the VA, the Veteran stated that his feet are so painful he can almost not walk and feels like he is walking on rocks. • In July 2016, the Veteran again reported that his right leg feels like it is going to blow up. See July 2016 VA treatment record. • In August 2016, he reported that he is having a hard time walking and may need a wheelchair. See August 2016 VA treatment record. • The Veteran reported in October 2017 that his legs are killing him and can’t hold him up to even get to the bathroom twenty yards away. See October 2017 VA treatment record. In considering any lay statements of record (some of which have been described above in this Remand), the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must state that he or she considered the Veteran’s lay statements regarding his lower extremity nerve pain in his or her report. The examination reports must include a complete rationale for any opinion provided. This would include any test findings, medical treatises, or other medical information used as a basis for the opinion.   If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.