Citation Nr: 22013597 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-49 940 DATE: March 10, 2022 REMANDED Entitlement to service connection for a right lower extremity sural neuropathy is remanded. Entitlement to service connection for a left lower extremity sural neuropathy is remanded. Entitlement to a rating in excess of 30 percent for left upper extremity radiculopathy is remanded. Entitlement to an initial compensable rating for seborrheic dermatitis is remanded. Entitlement to a compensable rating for residuals of closed fracture of the left fibular shaft is remanded. Entitlement to a rating in excess of 10 percent for right knee inferior articular surface tear is remanded. Entitlement to a rating in excess of 20 percent for lumbar spine arthritis and intervertebral disc syndrome (IVDS) is remanded. REASONS FOR REMAND These matters are before the Board of Veterans' Appeals (Board) on appeal of April 2015 and September 2016 Department of Veterans Affairs (VA) rating decisions. In September 2020, the Board, in pertinent part, denied entitlement to a rating in excess of 30 percent for left upper extremity radiculopathy, and remanded the issues of entitlement to an initial compensable rating for seborrheic dermatitis, a compensable rating for residuals of closed fracture of the left fibular shaft, a rating in excess of 10 percent for right knee inferior articular surface tear, and a rating in excess of 20 percent for lumbar spine arthritis and IVDS. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 Order, the Court granted a Joint Motion for Remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties) to vacate and remand only the portion of the Board's decision that denied entitlement to a rating in excess of 30 percent for left upper extremity radiculopathy. The issue has now been returned to the Board. The issues remanded by the September 2020 Board decision have also been returned to the Board. See November 2020 docketing letter. Additionally, in its September 2021 JMR, the Parties agreed that on remand the Board should address whether consideration is warranted for service connection for bilateral lower extremity sural neuropathies as associated with the service-connected lumbar spine arthritis and IVDS. See September 2021 JMR, at pages 5-6. The Board observes that bilateral sural neuropathies were diagnosed by a private provider in August 2014, shortly after an acute exacerbation of low back symptoms. A September 2016 VA examiner confirmed the diagnosis of bilateral sural neuropathies but opined that they were not related to lumbar spine arthritis. Nonetheless, this evidence reasonably raises the issue of whether the bilateral sural neuropathies are associated with the Veteran's lumbar spine arthritis and IVDS. Therefore, the issues of entitlement to service connection for bilateral sural neuropathies are properly before the Board as part of the claim for increased rating. Chavis v. McDonough, 34 Vet. App. 1, 1-2 (2021). In its September 2020 decision, the Board remanded the issues of entitlement to increased ratings for seborrheic dermatitis, lumbar spine arthritis and IVDS, residuals of closed fracture of the left fibular shaft and right knee inferior articular surface tear for additional development, to include obtaining any outstanding VA and private treatment records. The Veteran was then to be scheduled for VA examinations to determine the current severity of those disorders. None of the requested development has been completed. In October 2020, the AOJ issued a supplemental statement of the case (SSOC) addressing the issues of entitlement to evaluations in excess of 10 percent for bilateral hearing loss from August 19, 2019 and in excess of 10 percent for allergic rhinitis from March 23, 2016. The issuance of an SSOC addressing those issues was in error because the Board's September 2020 decision finally adjudicated those issues when it awarded a 10 percent rating for bilateral hearing loss from August 19, 2019 and a 10 percent rating for allergic rhinitis since March 23, 2016. The October 2020 SSOC did not address any of the issues remanded by the September 2020 Board decision. Despite this fact, a November 2020 letter notified the Veteran that his appeal had been returned to the Board. Given that none of the development directed by the September 2020 Board remand has been completed, remand is again required to ensure compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Given that the September 2020 Board decision remanded with instructions to obtain outstanding VA treatment, the Board is unable to speculate as to whether the contents of any outstanding treatment records may pertain to the remaining appealed issues. Thus, remand is also required as to the issues of entitlement to service connection for right and left lower extremity sural neuropathies, and to entitlement to a rating in excess of 30 percent for left upper extremity radiculopathy, pending the receipt of the requested records. Additionally, while the September 2016 VA examiner opined that sural neuropathy was not caused by lumbar spine arthritis, the examiner did not specifically address whether such neuropathy might be caused by IVDS, or whether it was aggravated beyond its natural progression by lumbar spine arthritis and IVDS. On remand, a medical opinion should be obtained addressing these issues. The matters are REMANDED for the following action: 1. Obtain any outstanding, relevant VA treatment records dated since February 2017. 2. Ask the Veteran to identify any relevant, outstanding private treatment records. Make two requests for any authorized records unless it is clear after the first request that a second request would be futile. Document attempts and results in the claims file. 3. Schedule the Veteran for a VA examination to determine the current severity of his seborrheic dermatitis as well as the nature and etiology of any other skin disorders. The claims file should be made available to and reviewed by the examiner. All necessary tests should be conducted, and all findings reported in detail. The examiner is requested to address the following: a. Identify all medications used to treat the Veteran's seborrheic dermatitis since April 2014 and the duration of such treatment, including but not limited to Lubriderm, Cetaphil, triamcinolone cream, and ketoconazole shampoo. b. Indicate whether each medication is topical, corticosteroid, or immunosuppressive. c. Indicate whether the Veteran has received constant or near-constant systemic therapy, including but not limited to corticosteroids phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs during the past twelve-month period. d. For any topical treatment, please address whether such treatment: (1) operates by affecting the body as a whole in treating the Veteran's seborrheic dermatitis; or (2) is "like or similar to" a corticosteroid or other immunosuppressive drug. e. If the examination is conducted during a non-active stage, the examiner is requested to estimate the portion of the Veteran's body affected by his seborrheic dermatitis during an active stage. f. For any currently diagnosed skin disorder other than seborrheic dermatitis, including psoriasis (see April 2014 private treatment record) the examiner is asked to state whether such disorder: i. is proximately due to his service-connected seborrheic dermatitis; or ii. is aggravated beyond its natural progression by his service-connected seborrheic dermatitis? A complete rationale for all opinions must be provided. g. Finally, please address questions (a)-(e) for each skin disorder attributed to the Veteran's seborrheic dermatitis in part (f) above. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine arthritis with IVDS, right knee inferior articular surface tear and residuals of closed fracture of the left fibular shaft. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. a. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If any requested testing cannot be completed, the examiner should state why that is the case. b. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and provide, to the extent possible, an estimate of the additional degrees of limited motion of the lumbar spine and bilateral knees during flare-ups. c. If the clinician cannot provide the above-requested opinions regarding flare-ups without resorting to speculation, he or she should state whether all procurable medical evidence has been considered, to specifically include the Veteran's description as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. Sharp v. Shulkin, 29 Vet. App. 26 (2017). d. For any lower extremity sural neuropathy diagnosed since April 1, 2014 the examiner is asked to state whether such disorder: i. is proximately due to his service-connected lumbar spine arthritis or IVDS; or ii. is aggravated beyond its natural progression by his service-connected lumbar spine arthritis or IVDS? A complete rationale for all opinions must be provided. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bametzreider, Paul J. 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.