Citation Nr: 20021401 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 12-23 604 DATE: March 25, 2020 REMANDED Entitlement to an effective date prior to April 11, 2011 for right lower extremity radiculopathy is remanded. Entitlement to an effective date prior to April 11, 2011 for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 2003 to August 2003, with service in the Iraqi Freedom Theater. This appeal was last before the Board in December 2018. The above characterized issues were subsequently appealed to the Court of Appeals for Veterans Claims (Court). The Court issued a Joint Motion for Partial Remand (JMPR) in August 2019 and the appeal has been returned to the Board for action consistent with the Court’s Order. 1. Entitlement to an effective date prior to April 11, 2011 for right lower extremity radiculopathy is remanded. 2. Entitlement to an effective date prior to April 11, 2011 for left lower extremity radiculopathy is remanded. In the August 2019 Joint Motion for Partial Remand (JMPR), the parties determined that the Board erroneously relied on the April 2011 date of the formal diagnosis of the Veteran’s right and left lower extremity radiculopathy as the effective date for entitlement to compensation, see Board Decision. The JMR noted that the Veteran’s treatment records included earlier indications of radiculopathy: a March 2008 VA clinic note reporting pain radiating down to right foot with numbness of right lower extremity with a prescription of Gabapentin for radicular/neuropathic pain; an April 2008 physical medicine rehabilitation note reporting that the Veteran admitted to pain radiating from his back to his right foot and assessing thoracic pain with radicular symptoms; an October 2008 VA examination documented leg pain, more on the right and shooting pain and numbness in the right foot; an October 2010 VA internal medicine note documented the Veteran’s complaints of occasional radiation of pain to left lower extremity. The JMR directed the Board to “determine whether Appellant had radiculopathy of either lower extremity at some time prior to April 11, 2011, even if not formally diagnosed until then.” As this is a determination that requires medical judgment, the Board may not make its own independent finding on this issue. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, this appeal must be remanded for a medical opinion as to the date the Veteran’s right and left lower extremity radiculopathy manifested, in compliance with the Court’s August 2019 Order granting the parties’ JMPR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the JMPR or explain why the terms will not be fulfilled.). The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate clinician regarding whether the Veteran’s right and left lower extremity radiculopathy manifested prior to April 2011. The examiner must address the following evidence noted in the Court’s JMPR: the March 2008 VA clinic note reporting pain radiating down to right foot with numbness of right lower extremity with a prescription of Gabapentin for radicular/neuropathic pain; the April 2008 physical medicine rehabilitation note reporting that the Veteran admitted to pain radiating from his back to his right foot and assessing thoracic pain with radicular symptoms; the October 2008 VA examination documented leg pain, more on the right and shooting pain and numbness in the right foot; and the October 2010 VA internal medicine note documented the Veteran’s complaints of occasional radiation of pain to left lower extremity. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.