Citation Nr: A19001594
Decision Date: 09/26/19	Archive Date: 09/26/19

DOCKET NO. 190826-23964
DATE: September 26, 2019

REMANDED

Entitlement to a disability rating in excess of 10 percent for service-connected lumbar radiculopathy, lower left extremity is remanded.

Entitlement to a disability rating in excess of 10 percent for service-connected lumbar radiculopathy, lower right extremity is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1962 to December 1966.

This case comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Columbia, SC.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2015). 38 U.S.C. § 7107 (a)(2) (2012).

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA).  This law creates a new framework for veterans dissatisfied with the Department of Veterans Affairs (VA’s) decision on their claim to seek review.  

Entitlement to a disability rating in excess of 10 percent for service-connected lumbar radiculopathy, lower left and right extremities are remanded.

Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration.  38 U.S.C. § 5103; 38 C.F.R. § 3.159.

A July 2019 rating decision considered all evidence of record and granted service connection for right and left lower extremity radiculopathy, rated as 10 percent disabling, with an effective date of April 2013.  The Veteran timely appealed the July 2019 rating decision with a Decision Review Request form in August 2019 and requested direct review of the evidence by the Board.  The Veteran contends he is entitled to a disability rating in excess of 10 percent for his bilateral lower extremity radiculopathy.

The Board finds a duty to assist error occurred prior to the July 2019 rating decision on appeal such that remand is warranted to correct the deficiencies.  Specifically, the November 2017 VA examination cited in the July 2019 rating decision was for the Veteran’s hips and thighs and did not sufficiently address the Veteran’s bilateral lower extremity radiculopathy.  Furthermore, the most recent VA examination specifically for the Veteran’s bilateral lower extremity radiculopathy was in April 2015.  Thus, an updated VA medical examination is warranted to assess the current severity of the Veteran’s service-connected bilateral lower extremity radiculopathy.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity and manifestations of his right and left lower extremity radiculopathy.  The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination.  The examination report must include a notation that this review of the evidence of record occurred.

The examiner is asked to identify the symptoms and any impairment that currently result from the Veteran’s service-connected right and left lower extremity radiculopathy and discuss the functional effects.

 

 

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. C. Slaughter, 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.