Citation Nr: 21014514 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-23 844 DATE: March 12, 2021 REMANDED Entitlement to an increased rating for neurological impairment of the right lower extremity (rated as noncompensable prior to March 11, 2011; 10 percent disabling from March 11, 2011 to September 30, 2013; and 20 percent disabling thereafter) is remanded. REASONS FOR REMAND In January 2019, the Board of Veterans’ Appeals (Board) remanded the Veteran’s appeal of the rating assigned for neurological impairment of the right lower extremity for a new examination due to his September 2018 testimony regarding increased severity of the disability since his previous examination in February 2016. The Board’s remand directives also instructed the selected examiner to provide an opinion addressing which nerves are encompassed by the Veteran’s service-connected disability and to “attempt to reconcile the November 2008, May 2011, September 2014, and February 2016 examination reports in this regard, to the extent possible.” If the examiner determined the Veteran’s service-connected encompasses multiple nerves, the examiner was then instructed to “explicitly state the symptoms and functional impairment resulting from each nerve with a specific emphasis on whether there are separate and distinct manifestations attributable to each nerve” to facilitate an informed decision on whether the Veteran’s neurological impairment of the right lower extremity should be rated under multiple diagnostic codes simultaneously. The Board finds there has not been substantial compliance with its prior remand directives requiring another remand in this case. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although the Veteran’s post-remand, November 2019 examiner confirmed the Veteran’s reports of increased severity, noting “severe” impairment of both musculocutaneous (superficial peroneal) and anterior tibial (deep peroneal) nerves, the November 2019 examiner did not attempt to reconcile, or even mention the previous examination reports, and did not provide an opinion that explicitly states the symptoms and functional impairment resulting from each nerve. Thus, an addendum to the November 2019 examiner’s report is necessary. Further, while necessary to ensure compliance with the Board’s prior remand directives, a remand will also provide the opportunity to obtain a retrospective opinion addressing the approximate date of the increase in severity of the Veteran’s disability noted by the November 2019 VA examiner, which will be of considerable assistance in this appeal due to the significant time lapse between the Veteran’s February 2016 and November 2019 VA examinations. See Chotta v. Peake, 22 Vet. App. 80 (2008). The matter is REMANDED for the following action: Request an addendum to the November 2019 examination report. The examiner is first asked to provide a retrospective opinion addressing the approximate date of onset of “severe” incomplete paralysis of the musculocutaneous (superficial peroneal) and anterior tibial (deep peroneal) nerves, noted during the November 2019 examination, to the extent possible based on the available evidence. The examiner is then asked to provide an opinion that attempts to reconcile the November 2008, May 2011, September 2014, and February 2016 examination reports in this regard, to the extent possible, with respect to the material issue of which nerves are encompassed by the Veteran’s service-connected disability, e.g., explain why nerves other musculocutaneous (superficial peroneal) and anterior tibial (deep peroneal) nerves were noted in previous examinations, if impairment of these nerves is not shown currently. The examiner is then asked to explicitly state the symptoms and functional impairment resulting from each nerve encompassed by the Veteran’s service-connected disability, with a specific emphasis on whether there are separate and distinct manifestations attributable to each nerve, to ensure an informed decision on whether the neurological impairment of the Veteran’s right lower extremity can be rated under multiple diagnostic codes simultaneously while avoiding pyramiding, i.e., compensating for the same symptoms under multiple diagnostic codes. The addendum must include a complete rationale for all conclusions reached therein. If the November 2019 examiner is unavailable, the addendum may be obtained from another examiner with the Veteran only being scheduled for a new examination if deemed necessary by the newly selected examiner. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.