Citation Nr: 21031251 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-53 285 DATE: May 21, 2021 REMAND Entitlement to a rating in excess of 10 percent for peripheral neuropathy and radiculopathy of the left lower extremity prior to November 9, 2012 is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy and radiculopathy of the left lower extremity from November 9, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1967 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Given the complicated procedural history of this claim, and in the interest of clarity, the Board is restating this history of this claim. The Veteran was initially awarded a 10 percent rating for radiculopathy of his left lower extremity associated with this service-connected lumbar spine disability in May 2009. The Veteran filed a statement in September 2010 indicating his wish to file a claim for an increased rating for his service-connected diabetes. Then, in September 2011, the Veteran filed statements related to a temporary total rating, which the RO initially deemed as a claim for entitlement to a total disability rating based upon individual unemployability (TDIU). The RO then took action to consider the ratings assigned for all of the Veteran's service connected disabilities. In July 2012, the RO issued a decision assigning a 20 percent rating for the diabetes and characterizing it as type II diabetes mellitus with nephropathy and peripheral neuropathy. This decision also confirmed and continued the 10 percent rating assigned to the left lower extremity radiculopathy associated with the lumbar spine disability. The Veteran filed a notice of disagreement (NOD) in March 2013. Subsequently, a November 2016 rating decision was issued, which found a separate 10 percent evaluation for the peripheral neuropathy associated with the Veteran's diabetes is warranted, effective September 6, 2010. This decision also awarded a 20 percent rating for radiculopathy and peripheral neuropathy of the Veteran's left lower extremity effective November 9, 2012. The rating code sheet shows RO combined the peripheral neuropathy and radiculopathy and now characterized the Veteran as having radiculopathy and peripheral neuropathy of the left lower extremity, which was rated as 10 percent disabling prior to November 9, 2012, and as 20 percent disabling from November 9, 2012 forward. A statement of the case (SOC) in response to the March 2013 NOD was not issued until September 2017. This SOC considered whether an evaluation of radiculopathy and peripheral neuropathy of the left lower extremity at more than 10 percent disabling was warranted for the period of September 6, 2010 to November 9, 2012; and whether an evaluation of radiculopathy and peripheral neuropathy of the left lower extremity at more than 20 percent disabling was warranted from November 9, 2012 to the present. The Veteran perfected the appeal by way of his October 2017 VA Form 9. In April 2020, the Board remanded this matter for further evidentiary development. In particular, the Board required the Veteran to be afforded a VA examination to assess the severity of his left lower extremity disability. The Veteran was afforded a VA examination in August 2020. Unfortunately, because the examination report is internally inconsistent, the report is unclear and unable to be used to rate the disability at issue. In particular, early in the report the examiner indicated that the Veteran has peripheral nerve condition and/or peripheral neuropathy, and also noted bilateral constant pain, paresthesias, and numbness due to Morton's Neuroma and left sciatic radiculopathy. The examiner later suggested there was no peripheral neuropathy and also suggested the lumbar radiculopathy was not symptomatic. In other words, the examiner both said the Veteran does and does not have peripheral neuropathy, and also said the Veteran does and does not have symptoms associated with his radiculopathy. This report, when read as a whole, does not reach logical conclusions and is internally inconsistent. For these reasons, the Board finds a remand necessary in order to obtain an adequate examination and opinion as to the severity of the Veteran's disability throughout this claim period. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected left lower extremity radiculopathy (recognized as associated with his service-connected lumbar spine disability) and peripheral neuropathy (recognized as associated with his service-connected diabetes mellitus). The examiner should review the claims file and indicate such on the examination report. Any testing deemed necessary should be conducted, and the results thereof should be noted in the report. After a review of the claims folder, as well as an interview with and an examination of the Veteran, the examiner is asked to do the following: (a.) The examiner should indicate whether any paralysis is complete or incomplete. In addition, address whether any incomplete paralysis is mild, moderate, or severe. To the extent possible, the examiner is asked to comment on the severity of the disability throughout the period of this claim, which has been pending since September 2010. (b.) Provide a description of the functional impact of the Veteran's service-connected left lower extremity radiculopathy and peripheral neuropathy, to include a description of how the disability affects or likely affects his ability to perform work and work-like tasks. For example, indicate the extent to which the disability affects his ability to sit, stand, and/or walk; lift and/or carry; and perform postural activities such as bending, kneeling, and crouching. To the extent possible, the examiner is asked to comment on the severity of the disability throughout the period of this claim, which has been pending since September 2010. (c.) If the examiner deems any prior diagnosis to have been made in error, such as was suggested by the most recent VA examiner, then a full explanation with consideration of the clinical evidence of record should be provided. 2. Thereafter, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative. After allowing an appropriate amount of time for response, return the case to the Board for review. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.