Citation Nr: 20004801 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 07-23 512 DATE: January 21, 2020 REMANDED The claim of entitlement to an initial rating greater than 40 percent for left lower extremity sciatic radiculopathy is remanded. REASONS FOR REMAND The Veteran, who is the appellant, served on active duty from August 1968 to May 1970. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2014 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) awarded service connection for left lower extremity sciatic radiculopathy and assigned a rating of 40 percent rating, effective June 28, 2013. At that time, the AOJ also awarded service connection for vertebral fracture, L1 with multilevel degenerative changes of the lumbar spine (previously rated as compression fracture, L1 with degenerative changes under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5285-5293) and assigned an initial 20 percent rating under DC 5242-5235, effective June 28, 2013. The Veteran timely disagreed with, and perfected an appeal as to, each assigned rating. In July 2014, the Board expanded the appeal to include the matter of the Veteran's entitlement to a total disability rating based on individual unemployability (TDIU) (citing Rice v. Shinseki, 22 Vet. App. 447 (2009)). In September 2014, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In May 2018, the Board denied the claim for higher rating for radiculopathy of the left lower extremity sciatic radiculopathy and remanded the claims for higher rating for lumbar spine disability and for a TDIU. The Veteran appealed the Board’s May 2018 denial to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties, vacating the Board’s May 2018 denial, and remanding the claim for higher rating for left lower extremity sciatic radiculopathy for further proceedings consistent with the Joint Motion. The Court noted that the Board remanded the claims for higher rating for lumbar spine disability and for a TDIU and thus left that portion of the decision undisturbed, as the Board remand was not a final decision over which the Court has jurisdiction. The Board further notes that, as the agency of original jurisdiction (AOJ) has not yet completed its actions on the remanded claims for higher rating for lumbar spine disability and for a TDIU, such matters are also not currently before the Board, but may be the subject(s) of one or more future appellate decision(s). Notably, in the JMPR, the parties agreed that the Court should vacate and remand the Board’s denial of a rating greater than 40 percent for lower left extremity sciatic neuropathy because the Board erred in denying the claim while simultaneously remanding the Veteran’s claim for a rating greater than 20 percent for a lumbar spine disability for further evidentiary development. Cf. Brambley v. Principi, 17 Vet. App. 20, 24 (2003) (holding that the Board erred when it prematurely denied a benefit when the record was incomplete). The partiies explained that the Veteran was denied a rating in excess of 40 percent for his left lower extremity sciatic radiculopathy because he did not have any muscle atrophy related to the left lower extremity sciatic radiculopathy. As part of the remand for the Veteran’s lumbar spine disability, the Board requested that the Veteran undergo a new VA spine examination, and this examination may provide information relevant to the severity of the Veteran’s radiculopathy. Specifically, as reflected in section 8b of the July 2014 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ) asks examiners whether a veteran has muscle atrophy. As such, the back examination that has been requested on remand in relation to the Veteran’s lumbar spine claim may provide relevant information on whether the Veteran has muscle atrophy, which is relevant to whether the Veteran is entitled to a 60 percent rating for his left lower extremity sciatic radiculopathy under 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520 (“Severe, with marked muscle atrophy”). As the new VA spine examination may provide information relevant to Veteran’s claim for an increased rating for left lower extremity sciatic radiculopathy, the parties agreed that remand is warranted for the Veteran’s left lower extremity sciatic radiculopathy increased rating claim. Accordingly, consistent with the JMPR, the Board finds remand of the issue of entitlement to a rating greater than 40 percent for left sciatic neuropathy is necessary so that the AOJ can reconsider this claim following the completion of the requested development for the higher rating claim for lumbar spine disability. While this matter is on remand, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. The matter is hereby REMANDED for the following action: 1. After completion of the requested actions for a higher rating for lumbar spine disability and TDIU claims, and any additional notification and/or development deemed warranted, adjudicate the claim for a higher rating for radiculopathy of the left lower extremity on appeal, considering all pertinent evidence (to particularly include all that added to the electronic claims file since the last adjudication) and legal authority. 2. To help avoid future remand, ensure that the requested action has been accomplished in compliance with this REMAND. If an action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah Campbell, 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.