Citation Nr: 21030242 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 13-14 684 DATE: May 18, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to August 31, 2015, in excess of 20 percent from August 31, 2015 to March 8, 2017, and in excess of 40 percent thereafter, for right lower extremity idiopathic neuropathy (RLE neuropathy) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1978 to July 1983, from June 2006 to October 2007 and from July 2009 to May 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015 and January 2017, the Board remanded the Veteran's claim. During the pendency of the appeal, the Veteran's RLE neuropathy rating was increased from 10 to 20 percent, effective August 31, 2015, and to 40 percent effective March 8, 2017. However, as the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim remains in appeal status. AB v. Brown, 6 Vet. App. 35 (1993). The claim has been recharacterized above to reflect the staged rating on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). As an aside, with regard to the change of Diagnostic Code in the most recent rating decision, the Board notes that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the diagnostic code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Here, the February 2018 rating decision assigned rating under different Diagnostic Codes and afforded the Veteran higher ratings. Neither the Veteran nor his representative has raised any contention as to the change of Diagnostic Code. Entitlement to a rating in excess of 10 percent prior to August 31, 2015, in excess of 20 percent from August 31, 2015 to March 8, 2017, and in excess of 40 percent thereafter for RLE neuropathy. The Veteran contends that he continues to experience challenges with walking and maintaining solid footing, and that his numbness continues to worsen. See Correspondence (November 2015). He stated that his balance is deteriorating as his RLE symptoms are worsening. See Medical Treatment Record - Non-Government Facility (April 2017). Id. He stated that he has been unable to run for exercise and his walking is also impaired now. Id. He stated that he fell in around April 2017, because he did not have the control of his muscles to maintain balance and could not stop himself from falling. Id. To ensure that VA has met its duty to assist, remand is again necessary to obtain a new VA examination and outstanding VA and private treatment records. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). First, in its January 2017 remand, the Boar requested that VA treatment records including from VA neuromuscular clinic from November 2015 are associated with the Veteran's file. See BVA Decision (January 2017). However, the November 2015 VA neuromuscular clinic note has not been associated with the Veteran's file. See Stegall, supra; 38 C.F.R. § 3.159(c)(2); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Second, the available VA treatment records and private treatment records show that the Veteran has been receiving private treatment from primary care physicians - Dr. A. K., MD, and Dr. R. K., MD. See Medical Treatment Record - Non-Government Facility (March 2015). VA treatment records from January 2012 to June 2017 show that the Veteran is primarily managed in the private sector, including in TriCare. See CAPRI (February 2018 & August 2018). Additionally, VA treatment records from July 2018 show that a fax was received from Dr. A.K. Id. However, the Veteran's file contains only sparse records from Dr. A. K. and Dr. R. K. dating from 2011 and 2014. However, the Veteran has not been provided with VA 21-4142 Authorization for Release of Information for release of these records and has not been provided with any Development Letters. The Board notes that these private treatment records are relevant to the Veteran's claim and must be obtained on remand. Given the above, remand is necessary to obtain the relevant outstanding private treatment records, which should then be associated with the claims file. See 38 C.F.R. § 3.159(c)(2); Sullivan, supra. Additionally, the Veteran has continuously reported worsening of his RLE neuropathy, and the available records and VA examinations also report gradual worsening of his RLE neuropathy. See C&P Exam (November 2017); Medical Treatment Record - Non-Government Facility (April 2017). Unfortunately, VA treatment records from August 2018 to the present or any private treatment records from 2014 to the present have not been associated with the Veteran's file. Nevertheless, the Board finds that, given the Veteran's reports of worsening symptoms and the November 2017 VA examination notation of interval increase in severity, the Veteran's current symptomatology should also be ascertained on remand. Thus, reexamination is necessary. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2018 to the Present. Associate copies of all treatment records faxed and associated with VA treatment records. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his RLE neuropathy since May 2010, to include records from TriCare, Dr. A. K., MD, and Dr. R. K., MD. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for a VA examination of the RLE to ascertain its current severity using the most recent Disability Benefits Questionnaire for Peripheral Nerve Conditions. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the separate rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, identify any symptoms and functional impairments due to RLE neuropathy alone and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, each examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.