Citation Nr: 18160041 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 11-08 967 DATE: December 21, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for left lower extremity (LLE) radiculopathy for the period prior to May 18, 2012 and in excess of 20 percent therefrom is remanded. Entitlement to an increased disability in excess of 20 percent for a low back disability is remanded. Entitlement to a separate rating for radiculopathy of the right lower extremity associated with the service-connected low back disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from September 1993 to September 1997. In June 2017, the Board denied increased ratings for service-connected LLE radiculopathy and service-connected low back disability. The Board also concluded that entitlement to a separate rating for radiculopathy of the right lower extremity associated with the service-connected low back disability was not warranted. The Veteran appealed the Board’s June 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Memorandum Decision, the Court vacated the Board’s 2017 decision to the extent that it had denied the initial and increased rating claims for the service-connected LLE radiculopathy and low back disabilities, respectively, and remanded these claims back to the Board for action consistent with its Memorandum Decision. Specifically, the Court determined that in denying the initial rating claim for LLE radiculopathy, the Board’s reliance on the conclusions of January 2010 and February 2011 VA examiners that the Veteran’s symptomatology was not consistent with moderate incomplete paralysis, was misleading in view of the severity of the symptoms of this disability found in the overall clinical record. The Court also found that to the extent that the Board had concluded that the Veteran’s subjective complaints, and the January 2010 and February 2011 VA examiners’ objective observations, did not reveal moderate symptomatology, it had failed to explain why that was the case. (See Court’s June 2018 Memorandum Decision at page (pg.) 4)). The Court also concluded that in denying the initial rating claim for LLE radiculopathy, the Board had failed to discuss a significant limitation in the May 2012 and August 2015 VA examination reports. Specifically, the Court determined that these examination reports did not provide the examiners with an option of the category “moderately severe,” in evaluating the Veteran’s LLE radiculopathy--criteria that is essential in rating the disability--but were only provided the options of “mild,” “moderate,” or “severe.” Id. at pg. 5. The Court also found that the Board had not explained its conclusion that the Veteran was not entitled to a separate disability rating for right lower extremity radiculopathy. Id. at pg. 3. (Parenthetically, the Court also noted that the Board’s June 2017 determination that new and material evidence had been received to reopen previously denied claims for service connection for right and left shoulder and right and left hip disabilities, each to include as secondary to service-connected low back disability, should remain undisturbed as they were favorable to the appellant. Id. at pg. 2 (quoting, Medrano. v. Nicholson, 21 Vet. App. 165, 170-71 (2007) (noting that the Court is not permitted to reverse Board’s favorable findings of fact)). The Board’s June 2017 remand of the underlying issues of entitlement to service connection for bilateral shoulder and bilateral hip disabilities, each to include as secondary to service-connected low back disability; entitlement to service connection for cervical spine disability; and, entitlement to a TDIU rating were not before the Court for judicial review. Id, quoting Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). In a December 2018 rating decision, the RO granted service connection for right and left shoulder disabilities; right and left hip disabilities and cervical spine disability. Thus, this action constituted a full grant of the benefits sought, and these claims are no longer open for appellate review. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). As noted above, in its June 2018 Memorandum Decision, the Court concluded, in part, that the May 2012 and August 2015 prefabricated VA examination reports did not provide the examiners with an option of the category “moderately severe,” in evaluating the severity of the Veteran’s LLE radiculopathy--criteria that is essential in rating the disability--but were only provided the options of “mild,” “moderate,” or “severe.” As such, the Board finds that additional VA examinations are warranted to determine the current severity of the Veteran’s low back disability and LLE radiculopathy, as well as the presence and severity of any right lower extremity radiculopathy. Because of the Veteran’s outstanding claims, her claim for TDIU is inextricably intertwined with this remand and the Board cannot fairly proceed in adjudicating the TDIU claim until the remaining claims have been resolved. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran with an examination to determine the severity of her service-connected left lower extremity radiculopathy, and to determine whether the Veteran has right lower extremity radiculopathy as a result of her service connected back disability. The examiner is requested to specifically comment on the presence of any complete or incomplete paralysis of the sciatic nerve impacting the left lower extremity and, if present, characterize it as mild, moderate, moderately severe or severe with marked muscular atrophy, explaining the basis for the specific determination. In so doing, the examiner should review the claims file and determine whether the Veteran’s left lower extremity radiculopathy has changed in severity during the course of her appeal (December 2009 to the present). Why or why not? The examiner is hereby advised that the DBQ must provide an option of each of the following levels of severity in evaluating the LLE radiculopathy: mild, moderate, moderately severe and severe with marked muscular atrophy. The examiner should opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran has a neurologic disability, such as radiculopathy, that impacts her right lower extremity and is the result of her service connected back disability. Why or why not? The examiner should review the 6/13/18 CAVC decision (beginning on page 59 of the document) for an explanation of why previous VA examinations were found to be inadequate with regard to the Veteran’s claim. 2. Schedule the Veteran for a VA examination to assess the current severity of her service-connected lumbar spine disability. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel