Citation Nr: 21065097 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-31 285A DATE: October 25, 2021 REMANDED Entitlement to a rating in excess of 40 percent for neuritis of the right upper extremity is remanded. Entitlement to an increased ratings for scars on the right hand, currently rated prior to September 24, 2019, and then 20 percent disabling thereafter, is remanded. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) at any time prior to May 24, 2010 is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from June 1976 to July 1979. The claims are on appeal from separate rating decisions issued September 2009, May 2012, and January 2013. A July 2014 rating decision increased the rating for neuritis pain disorder (regional sympathetic dystrophy) affecting the right upper extremity to 40 percent initially effective September 3, 2008. Meanwhile, the Veteran's claim for painful scarring was subsequently awarded an increased initial rating with an even higher later stage, 10 percent effective September 3, 2008 until prior to September 24, 2019, and then 20 percent thereafter. See Rating Decision (Apr. 30, 2020), but contra SSOC (Sept. 22, 2020) and BVA Remand (Mar. 4, 2021) (mischaracterizing the claim on appeal as for a compensable rating). As there are still higher ratings available throughout the period on appeal, and as the Veteran is presumed to be seeking the maximum benefit available, the claims remain in appellate status, as reflected on the title page. See AB v. Brown, 6 Vet. App. 35, 38-9 (1993). In his September 2014 substantive appeal, the Veteran requested a hearing before the Board at a local VA office. In a March 2015 written response to a choice of hearing, the Veteran requested adjudication of his claim without a hearing. As such, the hearing request is deemed withdrawn and the Board may proceed to adjudicate these claims. See 38 C.F.R. § 20.704(e). The Board also notes a claim for TDIU that was first informally claimed in December 2016, as part and parcel of an increased ratings claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran was subsequently awarded a TDIU effective May 24, 2010, see Rating Decision (June 8, 2021), but to the extent that TDIU may be effective earlier or else in the event that special monthly compensation (SMC) may be awarded, this claim is also still in appellate status. See AB, supra. The Veteran's claims were remanded in July 2018, and then most recently on March 4, 2021. By way of background, the Veteran's claims as were on appeal as of March 4, 2021 were as follows: two claims for service connection, an increased rating for neuritis in excess of 40 percent, increased ratings for residual scarring on the right hand, and TDIU. The two claims for service connection for lumbar spine degenerative disc disease and right leg radiculopathy were granted in a June 2021 rating decision and initial ratings were assigned for each condition, so they are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). After the March 4, 2021 Board remand, the Veteran was issued a Supplemental Statement of the Case (SSOC) on August 21, 2021. The Board accordingly reasserts jurisdiction. Unfortunately, while the Board sincerely regrets additional delay, the Board cannot escape the conclusion that the Board is precluded from issuing any final adjudications on any of the claims on appeal at this time. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in in excess of 40 percent for neuritis of the right upper extremity is remanded. A November 2012 VA peripheral nerve examination includes the examiner's finding of incomplete paralysis of the musculocutaneous nerve. The examiner, however, failed to indicate the severity of the incomplete paralysis; specifically, whether it was mild, moderate, or severe. A September 2019 VA peripheral nerve examination notes the Veteran's report of severe right upper extremity symptoms; however, the examiner failed to specify the affected nerves. Likewise, in September 2020, the Veteran underwent a VA examination, and the examiner again failed to indicate the severity of the musculocutaneous nerve. This medical finding is necessary in order to properly rate the service-connected neuritis pursuant to Diagnostic Code 8613, or to determine whether a diagnostic code other than Diagnostic Code 8613 may afford the Veteran a higher rating for his right upper extremity neuritis. See 38 C.F.R. § 4.124a, Diagnostic Code 8613. If an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2. For these reasons, the Board remanded the claim in March 2021. A new examination and addendum opinion were obtained in April 2021. See VA Exam ( Apr. 30, 2021 ) (rec'd June 2, 2021). The Veteran's symptoms in the right upper extremity include severe intermittent pain, but moderate constant pain, moderate paresthesias, and moderate numbness. See id. at Question No. 3A. Accordingly, the examiner concluded that the radial nerve manifests in moderate incomplete paralysis. See id. at Questions Nos. 10A, 10C, and 11A. Ultimately, the examiner further concluded that despite a worsening of symptoms, there is no change to the service-connected diagnosis and no additional diagnoses were rendered. See id. at Question No. 17 at Additional Question No. 1 (marking "C"). The Board concludes that this opinion is inadequate for rating purposes. Where the examiner was asked to provide their medical rationale, the answer simply reads "It is considered moderate paralysis due to the." See VA Exam ( Apr. 30, 2021 ) (rec'd Jun 2, 2021), at Section VII, Additional Question No. 2, Page 7 of 8. The Board determines that this opinion is merely bare and conclusory and is not otherwise supported by a well-reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2009); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion must support its conclusion with an analysis the Board can consider and weigh against contrary opinion."). The Board further notes that upon the last examination, the Veteran's symptoms were deemed worsened (with "severe" intermittent pain), but nevertheless no change was warranted. As the opinion is bare and conclusory, the Board is unable to determine whether the symptoms are always consistent with moderate incomplete paralysis (despite this apparent worsening, while the disorder has been duly rated 40 percent throughout the appellate period), or else if the symptoms have ever been instead consistent with worse than moderate incomplete paralysis to warrant a rating in excess of 40 percent at any time. Whereas the Board delineated where previous opinions were inadequate in March 2021, there is still no opinion anywhere else in the Veteran's claims file that adequately states whether the Veteran's neuritis of the right upper extremity, as was previously examined in November 2012, September 2019, and September 2020, manifested in moderate incomplete paralysis or worsenamely, "severe" incomplete paralysis or complete paralysis. For these reasons, the Board concludes that as the above opinions are still inadequate, see Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the Veteran has still not yet been afforded substantial compliance with the previous remand directives. See Stegall. supra. As such, the claim must be remanded. 2. Entitlement to increased ratings for scars on the right hand is remanded. As previous noted by the Board, the Veteran's claim for an increased rating for painful scars is inextricably intertwined with the claim for neuritis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Board notes that the November 2012 examination has a contradiction that should be reconciled on remand. The Veteran apparently had three superficial non-linear scars, see VA Exam (Nov. 5, 2012), at Section I, Question No. 2-1a, Pages 8-9, but only two of them (number two and number three) were measured, see id. (with "number one" left blank), and apparently only one of those scars was painful, see id. at Section I, Question No. 1a, Page 7. As the Board determines that as a more complete history of the progression of the Veteran's scarring disorder would be useful, but the matter is remanded as intertwined anyway, see Harris, supra, the Board defers adjudication of this claim and remands. 3. Entitlement to a TDIU at any time prior to May 24, 2010 is remanded. Finally, since the Veteran's claims for increased ratings rely in part on his disability ratings, these issue of entitlement to a TDIU any earlier than already awarded (in this case, prior to May 24, 2010) cannot be addressed until the above development has been completed. See Harris v. Derwinski, supra. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the claims file to the April 2021 examiner for addendum opinions. The need for further in-person examination is left to the discretion of the examiner. (A) The examiner is asked to review the Veteran's previous examinations as conducted in November 2012, September 2019, September 2020, and April 2021. For each of these exams, please provide complete and thorough opinions as to whether the Veteran's neuritis at those respective times manifested in moderate incomplete paralysis, severe incomplete paralysis, or complete paralysis. There is no opinion visible in the April 2021 report, which was procured as necessary after remand because previous examination reports were inadequate to rate the neuritis, which has been rated as 40 percent disabling since September 3, 2008. (B) The examiner should also attempt to elicit a full and complete history of the Veteran's scarring disability and reconcile findings in the November 2012 examination that state that one, two, or three scars were present and/or painful. A statement as to when each of the three scars became painful would be of considerable assistance to the Board. A rationale for all opinions should be provided. (Continued on the next page) If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.