Citation Nr: 21000725 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-02 119 DATE: January 6, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1989 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2015 Rating Decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that its December 2018 decision remanded the issue of entitlement to service connection for persistent depressive disorder claimed as depression. However, in a VA Form 10182 (Notice of Disagreement) received in July 2020, the Veteran indicated his desire to withdraw this issue from the Legacy Appeals System and instead pursue it under the Appeals Modernization Act (AMA) System on the Evidence Submission docket. In correspondence dated in October 2020, the Board acknowledged the Veteran’s selection and placed his appeal for this issue on the Evidence Submission docket. As such, the issue of entitlement to service connection for persistent depressive disorder claimed as depression will eventually be addressed in a separate decision under a different docket number within the AMA System, if otherwise in order. In December 2018, the Board, in pertinent part, denied entitlement to higher initial ratings for a lumbar spine disability, and granted a separate 20 percent disability rating, but no greater, for right lower extremity radiculopathy. The Veteran subsequently appealed that portion of the Board’s decision which denied a disability rating in excess of 20 percent for right lower extremity radiculopathy to the United States Court of Appeals for Veterans' Claims (Court). In a Joint Motion for Partial Remand (Joint Motion), the parties clarified that the Veteran was not appealing that portion of the Board’s decision that granted a 20 percent rating for right lower extremity radiculopathy (as this was a favorable finding) or the denial of higher initial ratings for the lumbar spine disability. However, the Joint Motion found that the Board did not adequately discuss potentially favorable evidence relating to a higher rating for radiculopathy or consider/discuss entitlement to a separate disability rating due to impairment of the right femoral nerve. Specifically, the Joint Motion noted that the Board failed to properly consider and weigh the findings of a July 2015 VA Back Conditions Disability Benefits Questionnaire completed by the Veteran’s private occupational therapist A.H., OTR/L and co-signed by Dr. A.M. This questionnaire indicated complaints of constant, severe pain; intermittent severe sciatic pain; severe paresthesia and/or dysesthesia; severe numbness of the right lower extremity; muscle atrophy; and femoral nerve involvement; and occasional bowel incontinence. As such, the Court issued an order vacating that portion of the December 2018 Board decision that denied the Veteran entitlement to a disability rating in excess of 20 percent for his service-connected right lower extremity radiculopathy and remanded the matter for action consistent with the Joint Motion. Pursuant to the October 2019 Joint Motion, the Board remanded the claim in April 2020 for additional development. In doing so, the Board noted that the Veteran was afforded a contemporaneous VA Back (Thoracolumbar Spine) Conditions examination in October 2015 (three months after the July 2015 VA Back Conditions Disability Benefits Questionnaire), the findings of which included only mild right lower extremity radiculopathy with sciatic nerve involvement, as well as mild intermittent pain and mild paresthesias and/or dysesthesias of the right lower extremity. Atrophy and bowel problems were not present. The Board also noted that the Veteran most recently underwent a VA Back (Thoracolumbar Spine) Conditions examination in January 2018, at which time the examiner found no radicular pain or signs or symptoms due to radiculopathy whatsoever. As the Board could not reconcile the discrepancies between the findings by the private occupational therapist in July 2015 and those on the subsequent VA examination reports without further medical guidance, and as the Veteran’s attorney requested that he be afforded a new VA examination to assess the current nature and severity of his right lower extremity radiculopathy, the Board remanded the matter in order to afford the Veteran a VA nerves examination. Specifically, following review of the claims file and examination of the Veteran, the Board requested that the VA examiner reconcile the apparently conflicting medical evidence in the record between the July 2015 Disability Benefits Questionnaire (which identified severe right lower extremity sciatic radiculopathy, femoral nerve involvement, and atrophy) and those findings of the January 2018 VA Back (Thoracolumbar Spine) Conditions examination (finding no evidence of radiculopathy) and the October 2015 VA Back (Thoracolumbar Spine) Conditions examination (finding only mild sciatic impairment). If these conflicting findings could not be reconciled, then the VA examiner was asked to explain why this was so. Pursuant to the Board’s April 2020 Remand, the Veteran was provided with a VA Peripheral Nerves Conditions examination in August 2020, at which time he was diagnosed as having right lower extremity radiculopathy. Significantly, this examination report indicated that electromyography (EMG) studies had not been performed. In her opinion, the VA examiner acknowledged that the Veteran’s subjective radiculopathy symptoms of shooting pain, dysesthesias, and numbness were serious and would be characterized as “moderate” or “severe” if there were accompanying objective findings. However, except for the subjective findings, and possible etiology of his herniated disc, the VA examiner noted that there were no objective findings based on the current examination, but suggested that EMG studies may be helpful in identifying such objective findings. The VA examiner subsequently concluded that, “Nevertheless, my examination showed radiculopathy pain, numbness, and tingling based on Veteran’s statement, but this examination did not find objective findings that warrant severity of nerve involvement that is considered moderate and/or severe. An EMG would be beneficial to correlate evaluations.” The Board’s April 2020 Remand directed that the VA examiner reconcile the apparently conflicting medical evidence in the record between the July 2015 Disability Benefits Questionnaire, with those findings of the October 2015 and January 2018 VA Back (Thoracolumbar Spine) Conditions examination reports. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders). As the August 2020 VA examiner indicated that EMG studies would be beneficial in identifying objective findings of radiculopathy symptoms as well as in reconciling the previous Disability Benefits Questionnaire with the VA examination reports, the Board finds that the Veteran should be scheduled for such studies. After EMG studies have been completed, an opinion should be obtained which documents the Veteran’s current right lower extremity radicular symptoms and reconciles the apparently conflicting findings of the July 2015 Disability Benefits Questionnaire, the October 2015 VA examination, and the January 2018 VA examination. The matters are REMANDED for the following action: Schedule the Veteran for an examination to determine the current nature and severity of his service-connected right lower extremity radiculopathy associated with the lumbar spine disability, and to reconcile the conflicting findings regarding the current nature and severity of this disability. This examination must include electromyography (EMG) studies of the right lower extremity. The examiner must identify all impaired nerves in the right lower extremity, to specifically include any sciatic nerve and/or femoral nerve root involvement. If no impairment is found in the sciatic or femoral nerve, then the examiner is asked to provide a rationale for such a finding. For each impaired nerve identified, describe the severity of the symptoms caused by the functional impairment, to include any complete or incomplete paralysis or atrophy. To the extent possible, the examiner should reconcile the apparently conflicting medical evidence in the record between the July 2015 Disability Benefits Questionnaire (completed by Veteran’s private occupational therapist A.H., OTR/L and co-signed by Dr. A.M.), which identified severe right lower extremity sciatic radiculopathy, femoral nerve involvement, and atrophy, and those findings of the January 2018 VA Back (Thoracolumbar Spine) Conditions examination (finding no evidence of radiculopathy) and October 2015 VA Back (Thoracolumbar Spine) Conditions examination (finding only mild impairment). If these conflicting findings cannot be reconciled, then the examiner should explain why this is so. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anthony M. Flamini 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.