Citation Nr: 21012650 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 13-02 506 DATE: March 4, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lower left extremity neuropathy is remanded. Entitlement to a rating in excess of 10 percent for lower right extremity neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from February 1967 to May 1971, and from August 1972 to July 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Board previously remanded this matter to the AOJ for further development in March 2016 and June 2017. In a September 2019 decision, the Board denied a rating in excess of 10 percent for both left and right neuropathy of the lower extremities, and the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In October 2020, the Court issued a Joint Motion for Partial Remand (JMR), returning the claims of increased ratings for bilateral lower extremity neuropathy to the Board. As a preliminary matter, the Board observes that the appeal of the issues of entitlement to ratings in excess of 10 percent for a left thumb fracture, 20 percent for diabetes mellitus, as well as 30 percent for posttraumatic stress disorder prior to September 8, 2017 and 50 percent thereafter, were dismissed by the Court as part of the October 2020 JMR. 1. Entitlement to a rating in excess of 10 percent for lower left extremity neuropathy is remanded. 2. Entitlement to a rating in excess of 10 percent for lower right extremity neuropathy is remanded. The September 2019 Board decision found that the Veteran’s bilateral lower extremity neuropathy warranted individual 10 percent ratings due to evidence of incomplete paralysis of foot movements. While acknowledging VA examination reports of impairment of multiple nerves in the lower extremities, the decision declined to assign separate ratings for individual nerves, citing the rule against pyramiding. In the October 2020 JMR, the Court noted that the Board provided inadequate reasons and bases for this decision. The Board observes that assigning separate ratings under different diagnostic codes does not constitute impermissible pyramiding so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran was afforded VA examinations for his bilateral lower extremity neuropathy in April 2013 and September 2017. The April 2013 examiner observed mild incomplete paralysis of the external popliteal nerve bilaterally as well as mild incomplete paralysis of the left internal popliteal nerve and mild incomplete paralysis of the right posterior tibial nerve, with all other nerves noted as normal. The September 2017 VA examiner observed mild incomplete paralysis of the sciatic nerve bilaterally, with the femoral nerve noted as normal. The examiner did not address any of the other lower extremity nerves. In a January 2021 lay statement, the Veteran’s wife reported that his diabetic neuropathy had progressively worsened, ultimately forcing him to retire from his nursing career. The Board finds that further medical opinion is needed in order to reconcile the April 2013 and September 2017 VA examinations as well as to determine the applicability of the various diagnostic codes pertaining to the individual nerves involved in lower extremity neuropathy. Additionally, given the length of time since the Veteran’s last VA examination and his wife’s description of worsening symptomatology, a new examination is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination; however, a material change in the condition or problems and/or inconsistencies in the prior examination(s) can so warrant). 3. Entitlement to a TDIU is remanded. The September 2019 Board decision found that the Veteran did not meet the schedular criteria for entitlement to a TDIU. In the October 2020 JMR, the Court noted that that this issue was intertwined with the remanded claims of increased ratings for bilateral lower extremity neuropathy. As the Board is remanding those claims for additional medical examination and opinion, it will defer consideration of the issue of entitlement to a TDIU at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain all updated VA and relevant private treatment records and associate them with the claims file. 2. Schedule the Veteran for a medical examination and appropriate associated testing to determine the nature and etiology of his currently shown bilateral lower extremity impairment. All tests and studies deemed helpful by the examiner should be accomplished in conjunction with the examination. The examiner is requested to clearly identify all nerve pathology in the lower extremities, and after a review of the medical records, to identify the likely source of each leg’s symptoms as well as discuss the severity of any individual nerve impairment. To the extent medically feasible, the examiner should identify each nerve root involved and the extent of impairment for each nerve root since 2012. The following should be addressed by the examiner in formulating the requested opinion: •April 2013 VA examination noting mild incomplete paralysis of the external popliteal nerve bilaterally as well as mild incomplete paralysis of the left internal popliteal nerve and mild incomplete paralysis of the right posterior tibial nerve, with other nerve findings recorded as normal. •September 2013 and September 2014 VA treatment records noting normal sensory examinations of the lower extremities. •October 2017 VA examination noting mild incomplete paralysis of the bilateral sciatic nerve only, with normal femoral nerve findings, but no other nerves addressed. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.