Citation Nr: 20052182 Decision Date: 08/06/20 Archive Date: 08/06/20 DOCKET NO. 10-44 235A DATE: August 6, 2020 REMANDED The claim for a higher initial rating for left lower extremity radiculopathy than the 10 percent assigned is remanded. The claim for a higher initial rating for right lower extremity radiculopathy than the 10 percent assigned is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2004 to October 2004 and from February 2006 to May 2007. The Department of Veterans Affairs (VA) is grateful for his service. Regrettably, for reasons explained below, the appealed claims must be remanded before the Board of Veterans’ Appeals (Board) may readjudicate the claims. 1. – 2. Claim for a higher initial rating for left lower extremity radiculopathy than the 10 percent assigned; claim for a higher initial rating for right lower extremity radiculopathy than the 10 percent assigned In an April 2019 decision, the Board, in pertinent part, granted separate 10 ratings for radiculopathy into each lower extremity while also granting a 20 percent rating for low back disability. The VA Regional Office (RO) effectuated those grants of benefits by a June 2019 decision, granting the 10 percent rating for radiculopathy into each lower extremity effective from March 23, 2009. The Veteran appealed the April 2019 Board decision, disagreeing with the Board’s denial of a higher rating for radiculopathy into each lower extremity than the 10 percent assigned. The United States Court of Appeals for Veterans Claims (Court) by a February 2020 Order approved a Joint Motion for Partial Remand (Joint Motion) vacating that portion of the Board’s decision which denied a higher rating than 10 percent for radiculopathy into each lower extremity. The Court remanded the case for Board action consistent with the Joint Motion. The Joint Motion found two specific faults with the Board’s April 2019 decision denying a higher rating for radiculopathy into each lower extremity. It found that the reasons and bases portion of the decision was inadequate because: 1) it failed to address a March 2009 VA treatment record in which it was reported that that twice a year the Veteran’s back was so bad that it caused him to lose feeling in both legs and he fell over, and 2) it failed to address an August 2011 Neurospinal Function Index Report which informed that the “state of health of core neurological and spinal functions” was “very challenged.” However, a careful review of the Board’s April 2019 decision reveals that it did address the March 2009 treatment and the Veteran’s self-report noted therein that on an irregular basis, approximately twice a year, he experienced back pain severe enough to cause him to lose feeling in his legs and to fall over. Nonetheless, a VA examiner has yet to address adequately this self-reported history by the Veteran of approximately twice a year having back pain so severe that he lost feeling in his legs and fell over. A new VA examination is accordingly warranted specifically to address whether back pain would cause such a loss of feeling in the legs and falling over, and whether this was consistent with the nature and severity of the Veteran’s radiculopathy, or consistent with more localized back disability with only subjective perception of loss of feeling in the legs, or whether the Veteran’s reported of such pain in the back with loss of feeling in the legs and falling over was entirely inconsistent with the nature and severity of the Veteran’s back disability and radiculopathy, and hence implausible and not believable. If reflective of the Veteran’s radiculopathy, the examiner should address the nature and severity of radiculopathy which would precipitate these episodes. An examiner should also endeavor to interpret the significance of the August 2011 Neurospinal Function Index Report findings regarding the “state of health of core neurological and spinal functions,” including whether this reflects a specific medical findings of level of impairment in radiculopathy or is merely a subjective and non-specific characterization of the condition or is unrelated to radiculopathy and which thus fails to support any particular level of impairment or disability. In a June 2020 brief, the Veteran’s representative also called attention to the need to address the impact of flare-ups on functioning as associated with the Veteran’s radiculopathy into the lower extremities. Any such impacts should also be addressed by the examiner upon remand. In the June 2020 brief, the representative also argued that the episodes of falling over which the Veteran described in March 2009 reflected episodes of complete paralysis warranting an 80 percent rating for each lower extremity. This question of whether these reported episodes are associated complete paralysis in each lower extremity must also be addressed by the examiner upon remand. The matters are REMANDED for the following actions: 1. Afford the Veteran and his representative an appropriate opportunity to submit additional evidence or argument in furtherance of the remanded claims. 2. Ensure that all outstanding VA and any pertinent private treatment records are associated with the claims file, subject to needed authorization. All actions to obtain the requested records should be documented in the claims file. 3. Thereafter, due to the Covid-19 pandemic, if records-based examination (including examinations supplemented by telephonic examination conducted with the Veteran) can satisfactorily address all questions posed in the remand instructions, then this should be accomplished. To the extent this cannot be accomplished, then in-person examination should be conducted to the extent feasible. Obtain a VA examination by an appropriate examiner to address currently and retrospectively over the entire claim period from March 2009 to the present, the nature, extent, and severity of radiculopathy into each lower extremity, including any intervals of greater or lesser severity of radiculopathy in each lower extremity. The claims file should be reviewed. Any necessary tests or studies should be conducted. The examiner must also document and consider the Veteran’s own statements regarding his disabilities, since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. Any flare-ups of radiculopathy, including their nature, severity, frequency, and duration, whether self-reported flare-ups are supported by more objective evidence, and their impact on functioning should also be addressed. The examiner should specifically address the Veteran’s report at a March 2009 neurological progress visit that he had approximately two episodes per year of such severe back pain that he lost feeling in his legs and this caused him to fall over. The examiner should address whether these incidents as described were consistent with the nature and severity of the Veteran’s radiculopathy into each lower extremity, or whether they were consistent with and reflective of more localized back disability with only subjective perception of loss of feeling in the legs, or whether the Veteran’s report of such pain in the back with loss of feeling in the legs and falling over was entirely inconsistent with the nature and severity of the Veteran’s back disability and radiculopathy, and hence implausible and not believable. If reflective of the Veteran’s radiculopathy, the examiner should address the nature and severity of radiculopathy which would precipitate these episodes. The examiner must also address whether such episodes of severe back pain and associated loss of feelings in legs and resulting falling over reflected episodes of complete paralysis of each lower extremity. The examiner should contrast this March 2009 self-report of incidents of severe pain with loss of feeling in the legs and falling over with other statements and more objective findings in treatment and examination reports, including VA and private treatment records, and VA examinations from October 2010, February 2012, and August 2018. The examiner should also note the comment by the August 2018 VA examiner that the Veteran’s presentation involved “symptom magnification.” This thus calls into question the Veteran’s past subjective reports of impairment, including of falling approximately twice yearly due to severe back pain and associated loss of feeling in his lower extremities and other findings based on the Veteran’s subjective self-report. Hence, to the extent feasible, the examiner should address which subjective reports by the Veteran of symptom of radiculopathy into the lower extremities are supported by or consistent with objective findings and which are not. The examiner must also endeavor to address the significance of the private August 16, 2011 Neurospinal Function Index Report findings regarding the “state of health of core neurological and spinal functions,” including specifically addressing the private physician D. M.’s interpretation of surface EMG testing and whether this this report’s finding of the “state of health of core neurological and spinal functions” as “very challenged” reflects specific medical findings of a particular level of impairment due to the Veteran’s radiculopathy into each lower extremity, or addresses the back disability or other disability and not radiculopathy, or is merely a subjective and non-specific characterization of disability which does not support a level of severity of radiculopathy into each lower extremity. If the examiner can discern some specific level of radiculopathic impairment in each lower extremity from the August 2011 Neurospinal Function Index Report, the examiner should explain that level of impairment and address whether such level of impairment is consistent with other findings of record of impairment associated with the Veteran’s radiculopathy into the lower extremities. The examiner must provide reasoned explanations for his or her findings and conclusions supported by evidence of record and medical knowledge. (Continued next page)   4. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechter 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.