Citation Nr: 1750152 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 11-33 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for radiculopathy in the lower extremities, to include as secondary to service-connected residuals of herniated disc, L5/S1 with pyriformis syndrome. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from February 1979 to August 2003 and from March 2009 to March 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board regrets additional delay, but finds further development is necessary prior to final adjudication of the claim in order to fully satisfy the duty to assist the Veteran. In November 2008, the Veteran filed a claim for service connection for neuropathy, lower extremities, to include as secondary to his back condition. With his claim, he submitted a Functional Capacity Evaluation Summary which indicated diagnoses of lumbar spondylosis/radiculopathy and indicated the Veteran was experiencing bilateral lower extremity radicular dysesthesias, pain. The RO denied the claim in April 2009 because there were no EMG test results or other nerve conduction studies to confirm radiculopathy and a clinical diagnosis of radiculopathy had not been rendered at the January 2009 VA examination. Notably, a clinical diagnosis of radiculopathy does not appear in the Veteran's most recent service treatment records from his second period of active duty service between March 2009 and March 2011. However, in an August 2011 private treatment record, the Veteran again complained of weakness and numbness in his legs which he attributed to a slipped disc in his back. In his December 2011 Form 9, the Veteran again stated his belief that he had chronic radiculopathy secondary to his lower back condition. He submitted nerve conduction studies (NCS) dated in June 2008 on the right and left legs which were normal. He also submitted results of a June 2008 electromyogram (EMG) of the right leg. The doctor's impression was chronic (R) L5 radiculopathy. The Board finds remand is warranted for a new VA examination because there is evidence of a current diagnosis of lower extremity radiculopathy and an indication that the current disability may be related to the Veteran's service-connected low back condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). As determinations of the Board may not be based on the Board's own medical judgment, a new examination should be scheduled to confirm the diagnosis of radiculopathy and to obtain a medical opinion as to whether it is at least as likely as not that radiculopathy, or some other diagnosed disability causing symptomatology in the Veteran's lower extremities, is caused by or aggravated by his service-connected low back condition. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The most recent treatment records associated with the claims file are dated in March 2012. More recent records may include a NCS confirming radiculopathy, continuing symptomology in the lower extremities or demonstrate a relationship between the Veteran's lower extremity symptoms and his service-connected low back condition. As such, on remand, relevant ongoing medical records should be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Associate all VA treatment records from March 2012 to the present with the electronic claims file. 2. Schedule the Veteran for a VA examination with a suitably qualified VA examiner for an opinion concerning the likely etiology of the Veteran's claimed radiculopathy in the lower extremities. Any necessary testing should be accomplished, to include a nerve conduction study, if possible, to confirm a diagnosis of radiculopathy, or other disability, given the Veteran's claimed symptoms of leg weakness and numbness. The claims file is to be made available to the examiner. Based on review of the record and examination of the Veteran, the examiner is asked to address whether the Veteran has lower extremity radiculopathy or another diagnosed disability causing numbness in the lower extremities. For each diagnosis, the examiner should opine whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the condition had onset in service or is otherwise related to service and/or whether it was (1) caused or (2) aggravated beyond its natural progression by his service-connected residuals of herniated disc, L5/S1 with pyriformis syndrome. Opinions as to causation and aggravation must be provided. If aggravation is found the examiner must identify the baseline level of severity prior to aggravation or the severity at the first point it is ascertainable after the aggravation began. A complete rationale for all opinions must be provided. If the examiner cannot respond without resorting to speculation, the examiner should explain why a response would be speculative and what additional evidence or information would be needed to offer an opinion. 3. When the development requested has been completed, readjudicate the Veteran's claim. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and provide the Veteran with an opportunity to respond in accordance with applicable statutes and regulations. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).