Citation Nr: 21072599
Decision Date: 12/03/21	Archive Date: 12/03/21

DOCKET NO. 16-35 621
DATE: December 3, 2021

REMANDED

Entitlement to a rating in excess of 20 percent for right peroneal nerve injury, demyelinating and axonal, prior to May 7, 2013, and to a rating in excess of 10 percent, thereafter, is remanded.  

REASONS FOR REMAND

The Veteran served on active duty from December 1956 to November 1957.    

This matter is on appeal before the Board of Veterans Appeals (Board) from a June 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In September 2021, a Board hearing was held before the undersigned; a transcript of the hearing is of record. 

The Board notes that the June 2013 rating decision reduced the rating for the Veteran's peroneal nerve disability from 20 percent to 10 percent effective May 7, 2013.  However, the Veteran's combined disability rating increased from 40 percent to 50 percent effective this date because the June 2013 decision also granted service connection for low back disability and left knee disability.  See June 2011 and June 2013 rating code sheets.  Consequently, the rating reduction for the right peroneal nerve disability did not result in a reduction in the Veteran's monthly compensation.  Accordingly, the RO was not required to afford the Veteran the procedural protections that are necessary when a rating reduction does result in a reduction in the Veteran's actual amount of monthly compensation.  See 38 C.F.R. § 3.105(e).           

Entitlement to a rating in excess of 20 percent for right peroneal nerve injury, demyelinating and axonal, prior to May 7, 2013, and to a rating in excess of 10 percent, thereafter, is remanded.

The Veteran most recently received a VA examination to assess the current severity of his right peroneal nerve disability in May 2016.  At the September 2021 Board hearing he testified that the disability had increased in severity since that examination, including increased limitation with standing and walking.  Given the testimony of worsening, the Board finds that a new VA examination to assess the current severity of the right peroneal nerve disability is necessary prior to final adjudication of this appeal.  Prior to arranging for the examination, the agency of original jurisdiction should obtain updated VA treatment records dated from July 2016 to the present.   

The matter is REMANDED for the following action:

(Continued on the next page)

 

1. Obtain updated VA treatment records dated from July 2016 to the present.

2.  Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right peroneal nerve disability.  The claims file should be made available for review by the examiner in conjunction with the examination.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dan Brook, 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.