Citation Nr: 21013181 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-23 501 DATE: March 8, 2021 ORDER Entitlement to a separate 10 percent rating, but no higher, for left knee flexion is granted. Entitlement to an initial rating of 30 percent, but no higher, for left knee instability is granted. Entitlement to an initial rating of 40 percent, but no higher, for degenerative spine disease is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a separate rating for a left lower extremity neurological condition associated with the Veteran’s service-connected degenerative spine disease, is remanded. Entitlement to a separate rating for a right lower extremity neurological condition, associated with the Veteran’s service-connected degenerative spine disease, is remanded. FINDINGS OF FACT 1. The Veteran's left knee flexion was manifested by actually painful motion. 2. The Veteran’s left knee instability was manifested by severe instability. 3. The Veteran’s degenerative spine disease’s symptoms more closely approximated that of a 40 percent rating. 4. The Veteran is not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a separate 10 percent rating, but no higher, for left knee flexion have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for an initial rating of 30 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for an initial rating of 40 percent, but no higher, for degenerative spine disease have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 4. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to September 1985 and from November 1989 to April 1990. He also served on active duty for training (ACDUTRA) from September 2008 to March 2009. The Veteran appealed an April 2011 rating decision by the Agency of Original Jurisdiction (AOJ). A May 2020 rating decision increased the Veteran’s initial rating for his left knee condition to 20 percent. A Board of Veterans’ Appeals (Board) hearing was held in January 2018. A transcript is of record. In September 2018, the Board remanded the Veteran’s claims to the AOJ for further action consistent with the Board’s remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the September 2018 Board decision additionally remanded the issue regarding service-connection for the residuals of a right foot injury. A May 2020 rating decision granted service-connection for a right foot injury. The Veteran has not expressed further disagreement with the May 2020 rating decision. As such, the issue regarding service-connection for a right foot injury is no longer on appeal. Increased Rating When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Knee The May 2020 rating decision increased the Veteran’s initial left knee rating to 20 percent. The May 2020 rating decision changed the rating Diagnostic Code to 5257 for left knee instability. The Veteran was initially awarded a 10 percent rating under Diagnostic Code 5260 for limitation of flexion for evidence of painful motion. Overall, there was no reduction in rating or severance of service-connection from the change in the Diagnostic Code. Cf. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Nevertheless, multiple codes are potentially applicable to the knee, and the law permits simultaneous rating under various codes, so long as prohibited pyramiding is avoided. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Knee disabilities are rated under Codes 5256 through 5263 of 38 C.F.R. § 4.71a. Code 5256 addresses ankylosis of the knee. Code 5257 addresses recurrent subluxation or lateral instability. Code 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint. Code 5259 addresses symptomatic residuals related to removal of semilunar cartilage. As noted, Code 5260 addresses limitation of motion on flexion, while Code 5261 addresses limitation of motion on extension. Code 5262 addresses impairment of the tibia and fibula from malunion or nonunion. Code 5263 addresses genu recurvatum. 38 C.F.R. § 4.71a. The Board notes that under the new rating criteria, the only relevant Diagnostic Code impacted in this case is Diagnostic Code 5257 regarding instability. The new rating criteria under Diagnostic Code 5257 is as follows. Under recurrent subluxation or instability, a 10 percent rating is assigned for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; a 20 percent rating requires either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; and a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Under patellar instability, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker; and a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. However, the Board finds that it would not be advantageous to rate the Veteran under the new Diagnostic Code since the rating criteria for a higher than 20 percent rating requires evidence of either a diagnosis of patellar instability or a complete ligament tear where a medical provider prescribes both an assistive device and brace for ambulation. Such evidence is not demonstrated in the record. Therefore, the Board will rate the Veteran under the original criteria for the entire period on appeal for his left knee instability. A. Limitation of Motion Code 5260 provides ratings for limitation of flexion with the following ratings assigned: 0 percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. Similarly, Code 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. The July 2010 VA examination report noted pain, giving way, that the Veteran could not stand for more than a few minutes and was unable to walk more than a few yards, and that he frequently used a knee brace. The March 2011 VA examiner noted the Veteran’s left knee was painful and gave way, that he was unable to stand or walk for long periods, that he had pain with motion, and that there was moderate impact on exercising and traveling. The Veteran’s spouse stated in a May 2013 statement that she had to drive the Veteran to appointments and help him bathe because of pain of reaching around his body, that he takes a while to complete any task of daily living, and that he lays in bed most of the day. The November 2019 VA examination report noted that the Veteran’s knee goes out every day and that he has to grab his wife for stability, there was pain on flexion, that he uses a cane and brace for ambulation, and that he had moderate recurrent subluxation and instability. Overall, the Veteran’s range of motion (ROM) measurements showed abnormal flexion, but flexion over 60 degrees, and normal extension. However, as noted above, the Veteran has exhibited painful motion of the left knee during flexion. Therefore, he is at least entitled to a minimum separate disability rating under Diagnostic Code 5260, or 10 percent, respectively. However, the Veteran is not entitled to a rating greater than 10 percent under Diagnostic Code 5260. The Board has also considered whether higher ratings are warranted based on functional loss due to pain, weakness, fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Although the evidence does show that the Veteran may experience painful motion, it does not result in a higher rating unless it results in additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). However, even considering additional functional loss, the Veteran’s left knee limitation of motion, according to the medical evidence of record, does not approximate limitation of flexion to 30 degrees or extension to 15 degrees. The Board has considered whether an additional rating might be assigned under Diagnostic Code 5261, for limitation of extension, or limitation of function in extension due to pain. However, as extension is measured as full and complete, even after extended use, the Board finds that the reported symptomatology of painful motion is already compensated under Diagnostic Code 5260. Overall, the Veteran is entitled to a separate 10 percent rating for painful motion on flexion under Diagnostic Code 5260 for the entire period on appeal. B. Instability Diagnostic Code 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. The words “slight,” “moderate,” and “severe” as used in the various Codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. As noted above, evidence demonstrates that the Veteran’s left knee goes out on a daily basis, that his spouse must aid him in certain tasks and for stability, and that he constantly uses a cane and brace. Based on the evidence, the Board finds that the Veteran is entitled to a maximum 30 percent rating throughout the period on appeal for his left knee instability. C. Other Conditions The evidentiary record does not suggest impairment of the tibia and fibula, impairment of the semilunar cartilage, genu recurvatum, or ankylosis of the left knee. As such, disability ratings under Codes 5256, 5258, 5259, 5262, and 5263 are not warranted. 2. Back All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. If the Veteran has Intervertebral Disc Syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ultimately, the Veteran’s disability rating will depend on which diagnostic code results in the higher evaluation. Here, the Veteran has not had IVDS. Although the Veteran stated a doctor had him on bedrest for three days, the medical evidence does not demonstrate that the Veteran has IVDS. See January 2018 Board hearing tr. at 9. Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not applicable. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis - 20 percent disabling. Importantly, VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5242, Note (1). Here, the Veteran does not have objective neurologic abnormalities that rise to compensable levels. The Board will address radiculopathy in the remand section below. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5243, Note (2). The Board notes that the new regulations do not impact the Veteran’s ratings in this case. Therefore, the Board will not address them in this decision. The July 2010 VA examination report noted severe constant and daily pain that radiates to the Veteran’s bilateral lower extremities with numbness and tingling, that pain is caused by prolonged sitting and lying down, and that walking only a few yards causes increased pain. The March 2011 VA examiner noted sitting for prolonged periods or bending aggravates the Veteran’s back, flexion was to 60 degrees, and that there was difficulty standing for prolonged periods. The Veteran’s spouse stated in a May 2013 statement that she had to drive the Veteran to appointments and help him bathe because of pain of reaching around his body, that he takes a while to complete any task of daily living, and that he lays in bed most of the day. The Veteran stated that his back is in constant pain and that he cannot stand or sit for prolonged periods. See January 2018 Board hearing tr. at 4-5. The November 2019 VA examiner noted the Veteran cannot sit or stand for long periods of time, forward flexion of 40 degrees, that the examination was being conducted during a flare-up, forward flexion of 35 degrees with repeated use over time, constant use of a brace and cane, and that the examination was conducted with the Veteran’s back brace on and while seated because he was too unstable to stand. The Board finds the Veteran’s back symptoms more closely approximate that of a 40 percent rating for the entire period on appeal. The November 2019 VA examination was conducted during a flare-up. Therefore, the November 2019 VA examination report best reflects the severity of the Veteran’s back symptoms. The November 2019 VA examiner noted forward flexion to as little as 35 degrees. The ROM measurements were obtained while the Veteran had a back brace on and while seated. This suggests that the Veteran’s forward flexion is worse than the noted ROM measurements if he did not have the back brace on and had to stand. Therefore, the Board finds the Veteran’s back condition more closely approximates that of forward flexion to 30 degrees or less. As such, the Veteran is entitled to a 40 percent rating for the entire period on appeal. However, a higher than 40 percent rating for the Veteran’s back condition would require a finding of ankylosis. Medical evidence of record has not found the Veteran to have ankylosis. Therefore, a higher than 40 percent rating is not warranted. TDIU The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The January 2012 notice of disagreement (NOD) noted the Veteran’s service-connected disabilities rendered him unable to maintain a substantial gainful employment. Since TDIU was raised during the pendency of the Veteran’s claim for a higher initial rating regarding his back and left knee conditions, the issue of TDIU dates back to the Veteran’s initial claim received March 31, 2010. Pursuant to this decision, the Veteran service-connected degenerative spine disease is rated at 40 percent and his combined rating is over 70 percent for the entire period on appeal. Therefore, the Veteran has met the schedular criteria for TDIU for the entire period on appeal. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; and (2) disabilities resulting from common etiology or a single accident. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran has 2 years of college education. See SSA records. The Veteran stated he last worked in 2009. See January 2018 Board hearing tr. at 10. SSA records note that Veteran worked in radio communication sales from 1996 to 1997, as an education recruiter from 1998 to 2005, and lastly in the military until 2009. The Veteran also stated that he was an active assistant pastor at a church, but did not get paid for that, and that he recently started working 10-hour weeks at a rental car agency. See January 2018 Board hearing tr. at 5, 12-13. The Board finds the Veteran’s part-time job at a rental car agency is marginal at best and does not amount to substantially gainful employment. As indicated above, the Veteran has met the threshold requirement for entitlement to TDIU on a schedular basis for the entire period on appeal. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. As noted above, the Veteran is unable to stand, walk, or sit for prolong periods of time. The Veteran uses a cane and brace in order to ambulate. The Veteran also takes a long time to complete daily living tasks and requires the aid of his spouse to get to appointments. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Veteran’s work history consists of military duties and other administrative positions. However, based on the Veteran’s service-connected musculoskeletal and neurological conditions he is unable to work in any position that requires prolonged physical activities as with lifting, sitting, standing, and walking. This would include any construction, retail, or warehousing position. The Veteran would also be unable to work in administrative positions where he would have to sit or stand for prolonged periods. This would include sales, clerical tasks, and computer positions. The Veteran also does not have experience or training in a different field that would allow him to take sufficient breaks to be able to tend to his pains and symptoms. At best, the Veteran would only be able to work a couple hours at a time. See January 2018 Board hearing tr. at 13. As such, the Board finds the Veteran credible as to his functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected disabilities, in combination, at least as likely as not prevent him from obtaining and maintaining substantially gainful employment for the entire period on appeal. Accordingly, resolving all doubt in the Veteran’s favor, the criteria for TDIU have been met, the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). REASONS FOR REMAND The July 2010 VA examination report noted severe constant and daily pain that radiates to the Veteran’s bilateral lower extremities with numbness and tingling. The Veteran stated he has sharp burning pain and bilateral neuropathy associated with his back condition. See January 2018 Board hearing tr. at 15-16. The Veteran is currently service-connected for left and right leg neuropathy, associated with the Veteran’s service-connected diabetes mellitus, for the entire period on appeal. Therefore, it is unclear whether the lower extremity neurological symptoms the Veteran associates with his back condition are separate and distinct from his service-connected bilateral diabetic neuropathy. Therefore, remand is required for a new VA examination to clarify if the Veteran has a separate neurological condition related to his service-connected back condition and, if so, its severity. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his back condition and any lower extremity neurological condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for a lower extremity nerve examination to determine the nature and etiology of his lower extremity neurological symptoms. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner should identify all lower extremity neurological conditions present apart from diabetic neuropathy. Then, the examiner is asked to respond to the following inquiries: Does the Veteran have a left lower extremity neurological condition that is separate and distinct from his service-connected left leg diabetic neuropathy? If yes, is it at least as likely as not that the Veteran’s left lower extremity neurological condition is caused or aggravated by his service-connected back condition? Does the Veteran have a right lower extremity neurological condition that is separate and distinct from his service-connected right leg diabetic neuropathy? If yes, is it at least as likely as not that the Veteran’s right lower extremity neurological condition is caused or aggravated to his service-connected back condition? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page)   3. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.