Citation Nr: 21042012 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 18-35 732 DATE: July 11, 2021 REMANDED The claim for an increased disability rating in excess of 20 percent for service-connected peripheral neuropathy of the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1967 until his honorable discharge in February 1970. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a July 2015 rating decision by the Pittsburgh, Pennsylvania, Regional Office of the United States Department of Veterans Affairs (VA), which continued the Veteran's 20 percent disability rating for peripheral neuropathy of the left lower extremity. The Veteran filed a timely notice of disagreement and subsequent appeal to the Board. He did not elect to testify before the Board. In an April 2020 decision, the Board denied the Veteran's claim for an increased disability rating. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion to Remand (JMR) submitted by the parties, the Court entered an order in February 2021 vacating the Board's decision in full and remanding the matter to the Board for readjudication. Within the parties' JMR, they stipulated: 1. The Board did not address relevant evidence received subsequent to the July 2015 VA examination, to include the Veteran's statements that his condition had worsened since the examination and that he was prescribed medication and diabetic shoes for his peripheral neuropathy of his left lower extremity; 2. The Board did not adequately explain why the Veteran's disability should not be rated under a different and a more appropriate diagnostic code when the VA examiner found that the Veteran's peripheral neuropathy was due to his "bilateral peroneal and sural nerves" and not his sciatic nerve; and 3. There are potentially relevant outstanding VA medical records that have not been associated with the electronic claims file. In light of these stipulations, and based on review of the current record, the Board concludes remand is required to obtain a new VA examination based on the Veteran's claims of worsening of his peripheral neuropathy since the 2015 VA examination. Moody v. Wilkie, 30 Vet. App. 329, 341 (2018) ("Generally speaking, VA must provide a new examination when the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition."). Remand is also required to attempt to obtain outstanding medical records consistent with VA's duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 21.1032 Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file, to include any VA medical records associated with the Veteran's VA medical treatment in July 2018 and December 2018. 2. Send appropriate correspondence to the Veteran asking him to identify and authorize release of any relevant medical records. VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, to include VA medical centers. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency. 3. After any additional records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician to assess the Veteran's service-connected peripheral neuropathy of the left lower extremity. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is specifically asked to address the following: (a.) Identify all nerves affected by the Veteran's peripheral neuropathy of the left lower extremity. (b.) For each identified affected nerve, the examiner must report all signs and symptoms associated with each nerve, to include the respective associated degree of severity, experienced by the Veteran under the appropriate rating criteria. (c.) If the examiner identifies more than one affected nerve, the examiner is asked to address whether or not specific symptoms are attributable to specific nerves, to the extent medically reasonable. The examiner should consider and, if deemed relevant, discuss the following evidence, in addition to any other relevant evidence: (a.) The Veteran's statements within his VA Form 9, Substantive Appeal to the Board, received by VA on July 9, 2018. (b.) November 2, 2016, and April 26, 2018, VA treatment records that the Veteran says documented that he was prescribed medication and diabetic shoes for his peripheral neuropathy of his left lower extremity. The examiner is reminded to consider the Veteran's lay statements as he is competent to report his symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertions. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. If the examiner relies on medical treatises, the examiner must identify the treatises. (Continued on the next page) If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. Following completion of all reasonable and necessary development, the Regional Office must readjudicate the Veteran's claims. As part of readjudication, the Regional Office should consider whether the Veteran's affected nerves associated with his left lower extremity peripheral neuropathy are properly rated under the correct diagnostic code(s). See Joint Motion to Remand and U.S. Court of Veterans Appeals Order (received by VA on February 17, 2021); see also 38 C.F.R. § 4.14 ([d]isability from injuries to the . . . nerves may overlap to a great extent, so that special rules are included in the appropriate bodily system for evaluation.") (Emphasis added); Shuttlesworth v. Wilkie, No. 19-1734, 2020 U.S. App. Vet. Claims LEXIS 1456, at *9 (Vet. App. July 31, 2020) ("Given multiple regulations that expressly forbid separate evaluations, the absence of instructions in [38 C.F.R.] § 4.124a suggests that separate ratings are not prohibited.") (remanding for a medical examiner to address whether the symptoms were separate and distinct or were attributable to a specific nerve). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.