Citation Nr: 21041050 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 13-18 725A DATE: July 8, 2021 REMANDED Entitlement to service connection for a neurological disorder affecting both lower extremities is remanded. Entitlement to a total disability evaluation due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from August 1965 to August 1968 and from November 1968 to June 1972. The Veteran had service in the Republic of Vietnam from May 1966 to May 1967 and from December 1970 to July 1971. He is, therefore, presumed to have been exposed to herbicide agents, to include Agent Orange. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran testified before the undersigned Veterans Law Judge in a March 2016 Video Conference Board hearing. A transcript of that hearing is of record. The Veteran's appeal from November 2009 and May 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO or AOJ) returns to the Board of Veterans' Appeals (the Board). In July 2020, the Board remanded the Veteran's claims of entitlement to service connection for a peripheral nerve disorder affecting both lower extremities and for a left knee disorder to afford the Veteran new VA examinations. The Board also remanded the Veteran's claim for a TDIU because it was inextricably intertwined with those issues. The Veteran received a VA examination for his left knee disorder in September 2019. The examiner responsible for the examination concluded that the Veteran's left knee disorder was more likely than not due events during the Veteran's combat service in the Republic of Vietnam. In a November 2020 rating decision, the AOJ granted service connection for a left knee disorder, rated as 10 percent disabling from September 3, 2008. This constitutes a complete grant of the benefit sought on appeal, and the issue of entitlement to service connection for a left knee disorder is not before the Board. The Veteran received a VA examination for peripheral nerve disorders in September 2019. For the reasons stated below, the Board concludes that the examination is not adequate, and the issue must be remanded to the AOJ for additional development consistent with VA's duty to assist the Veteran. 1. Entitlement to Service Connection for a Neurological Disorder Affecting both Lower Extremities As part of its duty to assist veterans in substantiating their claims, VA must ensure that VA examinations are adequate once VA has provided them. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Veteran's also have a right, as a matter of law, for substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran received a VA examination to determine the nature and etiology of his peripheral nerve disorder affecting both lower extremities in September 2020. The examination report noted a diagnosis for restless leg syndrome. The examination report also documents reports from the Veteran that symptoms of restless leg syndrome began around 1970 during his second period of active service. In its remand directives, the Board asked that the examiner consider medical literature submitted by the Veteran's attorney in April 2020 showing that peripheral neuropathy in the lower extremities may be associated with arthritis. The examiner did not address this medical literature when providing a rational for the nexus opinion. Because of this omission, the September 2020 VA examination did not comply with the Board's July 2020 remand directives and it is inadequate. The Board also finds the opinion and rationale inadequate with respect to the Veteran's entitlement to service connection on a secondary basis. At that time, the Veteran was service connected for bilateral ankle disabilities, and the Board requested an opinion on whether any peripheral nerve disorder was proximately due to or aggravated beyond its natural progression by the Veteran's service-connected bilateral ankle disabilities. The rationale for the opinion addressed whether the Veteran's left knee disorder was due to his service-connected ankle disabilities and did not address whether any peripheral nerve disorders or restless leg syndrome were due to the Veteran's service-connected ankle disabilities. Thus, the rationale is inadequate and does not comply with the Board's remand directives. Finally, the Veteran is now service connected for a left knee disability. A new VA examination is needed to determine whether any peripheral nerve disorder is proximately due to or aggravated beyond its natural progression by the Veteran's service-connected left knee disability. One of the articles submitted in April 2020 specifically addresses neuropathic pain associated with arthritis of the knee. This literature should be considered by a VA examiner to determine whether any peripheral nerve disorder is proximately due to or aggravated beyond its natural progression by the Veteran's service-connected left knee disability. 2. Entitlement to a TDIU Whether the Veteran is entitled to service connection for a bilateral neurological disorder of both lower extremities impacts his combined rating and whether he satisfies the criteria for a TDIU. Thus, the Board cannot at this time adjudicate his claims for a TDIU because it is remanding the Veteran's claim for service connection for a bilateral lower extremity neurological disorder. Where, as here, the issues are inextricably intertwined, a remand is necessary. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any peripheral neurological disorder affecting both lower extremities, to include restless leg syndrome. The examiner must provide the following opinions: (a.) Whether any peripheral nerve disorder of the lower extremities, to include restless leg syndrome, is at least as likely as not related to an in-service injury, event, or disease, including the Veteran's combat experience in the Republic of Vietnam and his presumed exposure to herbicide agents. In providing the requested opinion, consider the Veteran's reports that restless leg syndrome onset during active service and description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports that restless leg syndrome started during service and his statements about his symptoms during service align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (b.) Whether it is at least likely as not that peripheral neurological disorders affecting both lower extremities, to include restless leg syndrome, is proximately due to a service-connected disability, to include the Veteran's service-connected bilateral ankle disabilities or his service-connected left knee disability. (c.) Whether it is at least likely as not that peripheral neurological disorders affecting both lower extremities underwent any incremental increase in disability, regardless of its permanence, due to service-connected disability, to include his bilateral ankle disabilities or left knee disability. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. Provide a rationale for the opinions proffered. In doing so, the examiner must consider medical literature submitted by the Veteran in April 2020. 2. After undertaking the development directed above, adjudicate the Veteran's entitlement to a total disability evaluation due to individual unemployability. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Douglas M. Humphrey, 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.