Citation Nr: 21070436 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-45 089 DATE: November 24, 2021 REMANDED Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected left knee and/or back disabilities, is remanded. Entitlement to service connection for restless leg syndrome, to include as secondary to service-connected left knee and/or back disabilities, is remanded. Entitlement to a rating in excess of 30 percent for left total knee replacement is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 7, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2020 and February 2021, the Board remanded the case for additional development. While on remand, a July 2021 rating decision granted a TDIU, effective September 7, 2018. However, as the Veteran has contended that his service-connected left knee disability rendered him unemployable and the instant increased rating claim stems from a September 25, 2011, claim, the issue of entitlement to a TDIU prior to September 7, 2018, remains on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009); Harper v. Wilkie, 30 Vet. App. 345 (2018). The case now returns for further appellate review. 1. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as secondary to service-connected left knee and/or back disabilities. 2. Entitlement to service connection for restless leg syndrome, to include as secondary to service-connected left knee and/or back disabilities. In February 2021, the Board remanded the Veteran's claims for service connection for peripheral neuropathy of the bilateral lower extremities and restless leg syndrome in order to obtain an opinion addressing, as relevant, whether such disorders had their onset in, or are otherwise related to, his military service or manifested within one year of his separation from service in March 1971. In this regard, the Board found that a February 2020 VA examiner who offered an unfavorable opinion in regard to such matter did not acknowledge and discuss the Veteran's report of a continuity of symptomatology. Thus, in offering such opinions, the examiner was directed to specifically address the Veteran's reports that he began experiencing symptoms of such disorders in service, to include as a result of an in-service left knee surgery, that have continued to the present time. In an April 2021 addendum opinion, the February 2020 VA examiner again opined that such disorders less likely than not had their onset in, or were otherwise related to, the Veteran's military service, or manifested within one year of his separation from service in March 1971. In this regard, he simply reiterated his previous opinion that, per the Veteran, he never complained, or was diagnosed, evaluated, or treated for restless leg syndrome in the military; his post-service treatment records were negative for complaint, evaluation, diagnosis, or treatment until 2011; and, while he had multiple doctor visits for multiple issues, he never complained of, nor was diagnosed with, restless leg syndrome until 2011. Here, the examiner noted that he acknowledged that the Veteran had stated he complained of relevant symptoms in the military; however, there was no documentation in the service or post-service treatment records until 2011, which was 40 years after his separation from service. He further noted that it was highly improbable that an individual could go 40 years and have seen multiple providers and there be not one documented complaint or diagnosis of restless leg syndrome or peripheral neuropathy until 2011. However, the non-documentation of chronicity of care and/or treatment following the Veteran's discharge from service is an insufficient rationale to support a negative opinion in light of his lay reports of a continuity of symptomatology since service. In this regard, while the April 2021 examiner acknowledged the Veteran's reports, he essentially dismissed his complaints of post-service symptoms solely due to the fact that they were not documented in post-service treatment records. Thus, the Board finds that the April 2021 VA examiner's opinion does not substantially comply with the Board's February 2021 remand directives and a remand for an addendum opinion is necessary. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to a rating in excess of 30 percent for a left total knee replacement. In February 2021, the Board remanded this matter in order to obtain an addendum opinion addressing, as relevant, the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint, at the April 2013 and November 2018 VA examinations. If the examiner was unable to do so, he or she should explain why. Upon remand, an addendum opinion was obtained in April 2021 from the February 2020 VA examiner. At such time, he determined that, with respect to the Veteran's range of motion findings pertinent to the Veteran's left knee disability conducted in February 2020 (all normal), such findings were the same for pain on active and passive motion, and on weight-bearing and nonweight-bearing. However, he did not offer an opinion as to the previous range of motion findings in the April 2013 and November 2018 VA examinations. Thus, the Board finds that the addendum opinion does not substantially comply with the Board's prior remand directives. See Stegall, supra. Consequently, a remand for an addendum addressing such matter is necessary. 4. Entitlement to a TDIU prior to September 7, 2018. The Veteran contends that he is unable to work due to his service-connected left knee disability. Thus, the claim for a TDIU is inextricably intertwined with the increased rating claim remanded herein. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran's TDIU claim must be deferred pending the outcome of the increased rating claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this remand, to an appropriate medical professional other than the February 2020/April 2021 VA examiner, if possible, to obtain an addendum opinion addressing the etiology of the Veteran's restless leg syndrome and peripheral neuropathy of the bilateral lower extremities. Following a review of the record, the examiner should offer an opinion as to the following inquiries: (A) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's restless leg syndrome and/or peripheral neuropathy of the bilateral lower extremities had their onset in, or are otherwise related to, his military service? (B) Did restless leg syndrome and/or peripheral neuropathy of the bilateral lower extremities manifest within one year of the Veteran's separation from service in March 1971? If so, please describe the manifestations. In offering the foregoing opinions, the examiner must specifically address the Veteran's reports that he began experiencing symptoms of such disorders in service, to include as a result of his in-service left knee surgery, that have continued to the present time. The examiner is advised that the sole basis for a negative nexus opinion cannot be the fact that the Veteran's post-service treatment records are negative for any complaints, treatment, or diagnoses referable to the claimed disorders. Thus, if the examiner rejects the Veteran's lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records. A rationale for any opinion offered should be provided. 2. Return the record, to include a copy of this remand, to an appropriate medical professional other than the February 2020/April 2021 VA examiner, if possible, to obtain an addendum opinion addressing the severity of the Veteran's service-connected left knee disability during the course of the appeal. In this regard, the examiner is requested to review the VA examination containing range of motion findings pertinent to the Veteran's left knee disability conducted in April 2013 and November 2018. Thereafter, the examiner is requested to offer an opinion as to the range of motion findings, expressed in terms of degrees if possible, for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. In this regard, the examiner must make clear that he or she has considered all procurable data, but any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.