Citation Nr: 21020796 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 11-23 788 DATE: April 8, 2021 REMANDED Entitlement to a rating higher than 60 percent as of December 18, 2015, for post-operative lung cancer residuals with scarring, chronic obstructive pulmonary disease, and chronic bronchitis is remanded. Entitlement to a rating higher than 10 percent prior to December 30, 2015; higher than 30 percent from December 30, 2015, to March 12, 2018; and higher than 40 percent as of March 13, 2018, for right lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy is remanded. Entitlement to a rating higher than 10 percent for right femoral nerve peripheral neuropathy prior to December 30, 2015, is remanded. Entitlement to an initial rating higher than 0 percent for right lower extremity internal saphenous nerve peripheral neuropathy is remanded. Entitlement to a rating higher than 10 percent prior to December 30, 2015; higher than 30 percent from December 30, 2015, to March 12, 2018; and higher than 40 percent as of March 13, 2018, for left lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy is remanded. Entitlement to a rating higher than 10 percent for left femoral nerve peripheral neuropathy prior to December 30, 2015, is remanded. Entitlement to an initial rating higher than 0 percent for left lower extremity internal saphenous nerve peripheral neuropathy is remanded. Entitlement to an initial rating in excess of 10 percent for polycythemia vera on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran had active service from August 1971 to March 1973. He served in the Republic of Vietnam. The Veteran appeared at a May 2015 hearing before the undersigned Veterans Law Judge sitting at the Atlanta, Georgia, Regional Office. The hearing transcript is of record. In September 2016, the Board of Veterans’ Appeals (Board) denied ratings higher than 10 percent for right and lower extremity peripheral neuropathy prior to December 30, 2015; granted 30 percent ratings for those disabilities, effective December 30, 2015; and denied an initial rating higher than 10 percent for polycythemia vera. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims. In September 2017, the United States Court of Appeals for Veterans Claims granted the Parties’ September 2017 Joint Motion for Partial Remand; vacated those portions of the September 2016 Board decision which denied ratings higher than 10 percent for the right and left lower extremity peripheral neuropathy prior to December 20, 2015; and referral for consideration of the assignment of an extra-schedular rating in excess of 10 percent under 38 C.F.R. § 3.321(b)(1) for polycythemia vera; and remanded the appeal for additional action consistent with the Joint Motion for Partial Remand. In January 2019, the Agency of Original Jurisdiction (AOJ) recharacterized the right lower extremity peripheral neuropathy as right lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy rated as 40 percent disabling and right internal saphenous nerve peripheral neuropathy rated as 0 percent disabling; recharacterized the left lower extremity peripheral neuropathy as left lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy rated as 40 percent disabling and left internal saphenous nerve peripheral neuropathy rated as 0 percent disabling; and effectuated the ratings as of March 13, 2018. In November 2019, the Agency of Original Jurisdiction granted service connection for right femoral nerve peripheral neuropathy and left femoral nerve peripheral neuropathy and assigned 10 percent ratings for those disabilities, effective from December 10, 2009, to December 30, 2015. 1. Entitlement to a rating higher than 60 percent as of December 18, 2015, for post-operative lung cancer residuals with scarring, chronic obstructive pulmonary disease, and chronic bronchitis is remanded. The Board observes that the record is in conflict as the results of December 18, 2015, VA pulmonary function testing. The report of a December 2015 VA respiratory examination states that the December 18, 2015, pulmonary function testing revealed FEV-1 of 54 percent of predicted, FEV-1/FVC of 35 percent, and DLCO of 66 percent of predicted. The Board observes that a FEV-1/FVC of 35 percent would meet the criteria for assignment of a 100 percent rating under Diagnostic Codes 6600 and 6604. The report of a January 2017 VA respiratory examination states that the December 18, 2015, pulmonary function testing report found FEV-1 of 54 percent of predicted, FEV-1/FVC of 64 percent, and DLCO of 66 percent of predicted. Significantly, the actual December 18, 2015, pulmonary function test report is not of record. In April 2020, the Board remanded the claim specifically to obtain the report of the December 18, 2015, pulmonary function test. In November 2020, the AOJ requested that the Atlanta VAMC provide a copy of the December 18, 2015, pulmonary function test. The Atlanta VAMC responded, “[t]here are no records on file that are responsive to your request.” The Board further observes that within CAPRI records produced by the Atlanta VAMC, there is the following entry: Atlanta Pulmonary Lab Consult LOCAL TITLE: PULMONARY PROCEDURE PFT STANDARD TITLE: PULMONARY PROCEDURE REPORT DATE OF NOTE: DEC 18, 2015@16:24:52 ENTRY DATE: DEC 18, 2015@16:24:52 AUTHOR: CLINICAL,DEVICE PRO EXP COSIGNER: URGENCY: STATUS: COMPLETED PROCEDURE SUMMARY CODE: Machine Resulted DATE/TIME PERFORMED: DEC 18, 2015@10:36:1 ** DOCUMENT IN VISTA IMAGING ** SEE FULL REPORT IN VISTA IMAGING SIGNATURE NOT REQUIRED SEE SIGNATURE IN VISTA IMAGING This record suggests that the PFT report is available in Vista Imaging. On remand, the December 18, 2015, PFT report should be obtained from Vista Imaging and associated with the claims file. VA should obtain all relevant VA treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 2. Entitlement to a rating higher than 10 percent prior to December 30, 2015; higher than 30 percent from December 30, 2015, to March 12, 2018; and higher than 40 percent as of March 13, 2018, for right lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy is remanded. 3. Entitlement to a rating higher than 10 percent for right femoral nerve peripheral neuropathy prior to December 30, 2015, is remanded. 4. Entitlement to an initial rating higher than 0 percent for right lower extremity internal saphenous nerve peripheral neuropathy is remanded. 5. Entitlement to a rating higher than 10 percent prior to December 30, 2015; higher than 30 percent from December 30, 2015, to March 12, 2018; and higher than 40 percent as of March 13, 2018, for left lower extremity posterior tibial nerve, anterior tibial (deep peroneal) nerve, musculocutaneous (superficial peroneal) nerve, and external popliteal (common peroneal) nerve peripheral neuropathy is remanded. 6. Entitlement to a rating higher than 10 percent for left femoral nerve peripheral neuropathy prior to December 30, 2015, is remanded. 7. Entitlement to an initial rating higher than 0 percent for left lower extremity internal saphenous nerve peripheral neuropathy is remanded. In the April 2020 remand, the Board observed that the report of an October 2019 peripheral nerve examination conducted for VA stated that the Veteran exhibited “flat-footed gait, slightly favoring dragging the right leg without cane; with cane - the right lower extremity issue is not apparent.” The examiner commented that “no foot drop seen on exam; not enough rationale to create a new diagnosis;” and “the right deep peroneal nerve is the one that has been the issue with the right foot and the slight foot drop.” Because of the conflicting findings as to the Veteran’s gait and the presence of foot drop, the Board found the October 2019 examination report to be of essentially no probative value. The Board remanded the claims to schedule the Veteran for VA neurological examination. In the remand instructions, the Board specified that the presence or absence of foot drop should be specifically reported in the examination report. The Board also specifically requested that the VA examination be conducted by a physician. The requested examination was performed in October 2020. However, contrary to the Board’s instruction, the Veteran was performed by a nurse practitioner, not a physician. Further, the October 2020 VA examination report said nothing regarding the presence or absence of foot drop. The Board recognizes that in November 2020, the AOJ had a VA staff physician review the Veteran’s medical records to provide an addendum opinion. However, the November 2020 VA staff physician was not the individual who performed the October 2020 VA examination. Significantly, the November 2020 VA staff physician specified that the opinion was not based on examination of the Veteran. Therefore, the record is still unclear regarding the actual presence or absence of foot drop. The Agency of Original Jurisdiction’s compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Because of the cited deficiencies in the October 2020 VA examination report and the failure to comply with the Remand instructions, the Board finds that further VA evaluation is necessary. 8. Entitlement to an initial rating in excess of 10 percent for polycythemia vera on an extraschedular basis is remanded. In the April 2020 remand, the Board observed that the report of a December 2015 hematologic and lymphatic examination stated that the Veteran was concurrently diagnosed with polycythemia vera in remission and found not to have polycythemia vera. Because of the conflicting findings, the Board found that the December 2015 examination report was of no probative value. The Board remanded the claim to schedule the Veteran for a VA examination. In the remand instructions, the Board specifically requested that the VA examination be conducted by a physician. The requested examination was performed in October 2020. However, contrary to the Board’s instruction, the Veteran was performed by a nurse practitioner, not a physician. The Agency of Original Jurisdiction’s compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Because of the cited deficiencies in the October 2020 VA examination report and the failure to comply with the Board’s Remand instructions, the Board finds that further VA evaluation is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA clinical documentation not already of record, to specifically include the report of a December 18, 2015, pulmonary function test that, according to CAPRI, is available in Vista Imaging. 2. Schedule the Veteran for a VA neurology examination conducted by a medical doctor to assist in determining the nature and severity of service-connected right lower extremity and left lower extremity peripheral neuropathy. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: a. Confirm that the examiner is a medical doctor. b. Provide a description of symptoms for both lower extremities and opine as to the level of severity of the lower extremity peripheral neuropathy in each extremity. All affected nerves should be specifically identified and the severity of peripheral neuropathy in each affected nerve described. c. Opine whether the lower extremity peripheral neuropathy causes any impairment of mobility. d. For the right and left lower extremity, specifically state whether or not there is foot drop for each extremity, and state what testing was used to make that determination. e. Provide an opinion as the impact of the lower extremity neurological disabilities on the Veteran’s vocational activities. 3. Schedule the Veteran for a VA examination conducted by a medical doctor to assist in determining the nature and severity of service-connected polycythemia vera. The examiner must review the record and should note that review in the report. The examiner should provide a description of symptoms for the service disability or should note the absence of symptoms. The examiner should describe any type of therapies needed for polycythemia vera and the frequency of those treatments. The examiner should state whether there are any complications resulting from polycythemia vera, such as hypertension, gout, stroke, or thrombotic disease. A rationale for all opinions should be provided. The examiner should provide an opinion as the impact of the polycythemia vera on the Veteran’s vocational activities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.