Citation Nr: 21010925 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-45 089 DATE: February 26, 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) 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, the Board remanded the case for additional development and it 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 January 2020, 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 offering such opinions, the examiner was directed to consider 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. On VA examination in February 2020, the examiner 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 reported that, per the Veteran, he never complained, or was diagnosed, evaluated, or treated for restless leg syndrome in the military. The examiner further reported that the Veteran’s 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. The examiner further found that such disorders were most likely related to a 50+ pack years of cigarette smoking, and aggravated by alcohol use and diabetes mellitus. 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, the February 2020 VA examiner failed to acknowledge and discuss the Veteran’s report that he continued to experience related symptoms following his separation from service as directed by the Board’s January 2020 remand. Thus, the Board finds that the February 2020 VA examiner’s opinion does not substantially comply with the Board’s January 2020 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 January 2020, the Board remanded this matter in order to schedule the Veteran for an appropriate VA examination in order to assess the current nature and severity of his service-connected left knee disability. As relevant, the remand directed the examiner to review the April 2013 and November 2018 VA examinations containing range of motion findings pertinent to the Veteran’s left knee disability, and offer an opinion as to 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, and, if the examiner was unable to do so, he or she should explain why. Upon remand, the Veteran was afforded a VA examination in February 2020. However, while such examination complied with the Court’s holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), and the examiner noted the Veteran’s relevant reports from the April 2013 VA examination in reciting the relevant evidence of record, he did not offer an opinion as to the previous range of motion findings. Thus, the Board finds that the February 2020 examination 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. 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). Additionally, upon remand in January 2020, the Board directed that the Veteran be requested to complete and submit a Veteran’s Application for Increased Compensation for Unemployability (VA Form 21-8940). Later that month and in April 2020, the AOJ requested that he complete and return such form; however, he did not do so. Accordingly, the AOJ issued a May 2020 rating decision and July 2020 supplemental statement of the case denying a TDIU due to the lack of response from the Veteran. However, in August 2020, he submitted a VA Form 21-8940. Thus, on remand, the AOJ should review the form and conduct any necessary development prior to the readjudication of the claim. The matters are REMANDED for the following action: 1. The AOJ should review the Veteran’s VA Form 21-8940 received in August 2020 and conduct any necessary development. 2. Return the record, to include a copy of this remand, to the VA examiner who conducted the February 2020 VA examination addressing the etiology of the Veteran’s restless leg syndrome and peripheral neuropathy of the bilateral lower extremities. If the February 2020 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. 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. A rationale should be provided for any opinion offered. 3. Return the record, to include a copy of this remand, to the VA examiner who conducted the February 2020 VA examination addressing the severity of the Veteran’s left knee disability. If the February 2020 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. 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. In this regard, 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. A rationale should be provided for any opinion offered. 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.