Citation Nr: 25001050 Decision Date: 01/27/25 Archive Date: 01/27/25 DOCKET NO. 15-22 315 DATE: January 27, 2025 REMANDED Entitlement to a disability rating higher than 20 percent for right lower extremity diabetic peripheral neuropathy of the sciatic nerve prior to August 30, 2012, is remanded. Entitlement to a disability rating higher than 40 percent for right lower extremity for right lower extremity diabetic peripheral neuropathy of the sciatic nerve from August 30, 2012, is remanded. Entitlement to a disability rating higher than 10 percent for left lower extremity diabetic peripheral neuropathy of the sciatic nerve prior to January 23, 2012, is remanded. Entitlement to a disability rating more than 20 percent for left lower extremity diabetic peripheral neuropathy of the sciatic nerve from January 23, 2012, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, for the period prior to August 30, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1967 to March 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran attended a Board hearing held by a Veterans Law Judge (VLJ). The transcript of that hearing is of record. However, the VLJ who conducted that hearing is no longer available to participate in this decision. The Veteran was put on notice of this fact in an October 2021 letter and was provided an opportunity to request another Board hearing. That letter also informed the Veteran that if he did not respond within 30 days, the Board would proceed with his appeal. The Veteran did not respond to the letter within this time frame. The Board has considered the transcript of that hearing as evidence in making its decision. In a January 2013 rating decision, the RO increased the Veteran's left lower extremity peripheral neuropathy from10 percent to 20 percent, effective January 23, 2012. As this decision does not constitute a full grant, this issue remains on appeal. AB v. Brown,6 Vet. App. 35, 39(1993). The Board notes that in an October 2024 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left and right lower extremity peripheral neuropathy of the femoral nerves. The Veteran has not appealed these determinations, and therefore these matters is not currently before the Board. See, e.g., DeHart v. McDonough, 37 Vet. App. 371 (2024) (Holding that neurological complications of a service-connected spine disability do not remain part and parcel of an increased (or initial) rating claim for a spine disability once the neurological complications are adjudicated by VA.) In a February 2023 Board decision, the Veteran was granted entitlement to a TDIU for the period prior to January 16, 2018. Thereafter, in a February 2023 rating decision the AOJ implemented the Board decision and assigned an effective date of August 30, 2012, for the beginning of the award of TDIU. However, as the claims for higher evaluations were pending prior to August 30, 2012, entitlement to a TDIU for the period prior to August 30, 2012, remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to a disability rating higher than 20 percent for right lower extremity diabetic peripheral neuropathy of the sciatic nerve prior to August 30, 2012, is remanded. 2. Entitlement to a disability rating higher than 40 percent for right lower extremity for right lower extremity diabetic peripheral neuropathy of the sciatic nerve from August 30, 2012, is remanded. 3. Entitlement to a disability rating higher than 10 percent for left lower extremity diabetic peripheral neuropathy of the sciatic nerve prior to January 23, 2012, is remanded. 4. Entitlement to a disability rating more than 20 percent for left lower extremity diabetic peripheral neuropathy of the sciatic nerve from January 23, 2012, is remanded. The above issues were most recently before the Board in December 2023 when they were remanded for additional development. There has not been substantial compliance with the Board's remand directives and the claims must be remanded again. Stegall v. West, 11 Vet. App. 268 (1998). In the prior Board remand it was identified that the case was previously before the Board in May 2019 when it was remanded for additional development. The case then returned to the Board and in a decision dated February 2022, the Board denied a rating more than 20 percent for right lower extremity diabetic peripheral neuropathy prior to August 30, 2012; awarded a 40 percent rating for the right lower extremity diabetic peripheral neuropathy from August 30, 2012, and denied a rating more than 40 percent from that date; denied a rating more than 10 percent for left lower extremity diabetic peripheral neuropathy prior to January 23, 2012; and denied a rating more than 20 percent for left lower extremity diabetic peripheral neuropathy from January 23, 2012. The Veteran appealed the Board's denial of the above issues to the United States Court of Appeals for Veterans Claims (Court). In February 2023, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMPR). An Order of the Court dated March 2023 granted the motion, vacated in part the Board's February 2022 decision, and remanded the case to the Board. The Veteran's claims folder has been returned to the Board for further appellate proceedings. The Board again remanded the claims for higher evaluations for lower extremity diabetic peripheral neuropathy in December 2023. The Board also notes that in November 2023 and October 2024, the Board remanded claims of entitlement to service connection for cervical spine, lumbar spine, and right shoulder disabilities to the AOJ for evidentiary development. The Board notes that these claims continue to be in remand status. The Board noted in December 2023 that the parties to the February 2023 JMPR agreed that in the February 2022 decision, the Board did not explain its understanding of the terms "mild," "moderate," "moderately severe," and "severe" for paralysis of the sciatic nerve in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Also, the parties agreed that the Board did not address whether a September 2019 VA Diabetic Sensory-Motor Peripheral Neuropathy examiner substantially complied with the May 2019 Board remand instructions. In this regard, the May 2019 Board remand ordered the examiner to "elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups." The parties agreed that the examiner did not attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare-ups. On remand, the Board was to discuss the May 2019 remand instructions and address whether the September 2019 VA examiner substantially complied with the remand instructions or whether a new examination is required. Considering the JMPR, in particular the parties' finding as to the inadequacy of the September 2019 VA Diabetic Sensory-Motor Peripheral Neuropathy examination considering the instructions detailed in the May 2019 Board remand as to the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, the Board found in December 2023 that remand was warranted for compliance with the May 2019 remand instructions. Subsequent to and pursuant to the December 2023 Board remand, the Veteran was afforded a VA examination in March 2024. The Veteran was diagnosed with right and left lower extremity diabetic peripheral neuropathy. There was intermittent, mild pain in the right and left lower extremity, moderate paresthesias and/or dysesthesias in the right and left lower extremity, and moderate numbness in the right and left lower extremity. Strength was normal in the knees and ankles. Deep tendon reflexes were decreased in the knees and ankles. Light touch was decreased in the knee/thigh, ankle/lower leg, and foot/toes bilaterally. Position sense, vibration sense, and cold sensation were not tested. There was no muscle atrophy. The Veteran had trophic changes of smooth, shiny skin on the bilateral lower extremities. The examiner identified moderately severe incomplete paralysis of the sciatic and femoral nerves in the bilateral lower extremities. However, careful review of the examination report does not show consideration of the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, as requested by the Board in the December 2023 remand. Therefore, there has not been substantial compliance with the Board's prior remand and another remand is required for compliance with the prior instructions. Stegall v. West, 11 Vet. App. 268 (1998). Evidence indicates that there may be outstanding relevant VA treatment records. The Veteran receives consistent treatment from VA. However, treatment records dated since September 2024 have not been obtained and associated with the claims file. Any VA treatment records are within VAs constructive possession and are considered potentially relevant to the issues on appeal. Therefore, a remand is required to allow VA to obtain them. In a September 2024 VA treatment record it was reported that the Veteran was receiving home health aide assistance from First Light Home Care. However, treatment records from this provider have not been obtained and associated with the claims file. On remand, after obtaining any necessary authorization, attempts must be made to obtain and associate with the claims file all non-VA treatment records regarding the Veteran. See 38 C.F.R. § 3.159. 5. Entitlement to a TDIU, for the period prior to August 30, 2012, is remanded. As a decision on the issues remanded above could significantly impact a decision on the issue of entitlement to a TDIU for the period prior to August 30, 2012, the issues are inextricably intertwined and a remand of this issue is required. The Veteran was noted in statements to have significant impairment from his service-connected disability benefits in June 2011 and, therefore, there is an indication that the Veteran's service-connected disabilities may impair his ability to obtain and maintain substantially gainful employment prior to August 30, 2012. However, the Veteran does not currently meet the schedular criteria for an award of TDIU during the period prior to August 30, 2012. VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU based on 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's VA treatment records for the period from September 2024 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for First Light Home Care and all other non-VA providers. Make two requests for the authorized records from First Light Home Care and all other identified non-VA providers, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral lower extremity neuropathy. 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. 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, the examiner should identify any symptoms and functional impairments due to bilateral lower extremity neuropathy alone and discuss the effect of the Veteran's bilateral lower extremity neuropathy 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, the 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). (Continued on the next page) ? 4. Forward the claim to VA's Director of C&P Service or Under Secretary for Benefits for consideration of entitlement to a TDIU prior to August 30, 2012, in accordance with 38 C.F.R. § 4.16 (b), and readjudicate the Veteran's claim for TDIU. T. RAYMOND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert J. Burriesci, 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.