Citation Nr: 21002027
Decision Date: 01/12/21	Archive Date: 01/12/21

DOCKET NO. 18-29 396
DATE: January 12, 2021

REMANDED

1. Entitlement to service connection for left lower extremity radiculopathy as a symptom of service-connected degenerative disc disease of the lumbar spine is remanded.

2. Entitlement to service connection for right lower extremity radiculopathy as a symptom of service-connected degenerative disc disease of the lumbar spine is remanded.

REASONS FOR REMAND

The Veteran served in the United States Navy from January 1999 to January 2007.

These issues were previously denied in a September 2019 Board of Veterans’ Appeals (Board) decision. The Board notes that the rating decision on appeal was issued in February 2018. In July 2018, the Veteran opted-in to the modernized review system, selecting the direct review docket. 38 C.F.R. § 19.2(d).

In July 2020, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Remand (Joint Motion), which was granted by the United States Court of Appeal for Veterans Claims (CAVC). The parties agreed that vacatur and remand are warranted because the Board erred by failing to adequately explain the apparent contradiction between the Veteran’s objective symptomatology and the Board’s conclusion that the Veteran does not have a current diagnosis or disability of left and/or right lower extremity radiculopathy.

Specifically, the parties indicated that two opinions from VA medial clinicians did not provide an adequate rationale to support a denial of the Veteran’s claims. The Veteran underwent a VA examination of the lumbar spine and peripheral nerves in December 2017. The parties found that the clinical findings in the December 2017 examination report were internally inconsistent because the examiner found the Veteran had various neurological problems with sciatic nerve root involvement but declared she was unable to confirm a current diagnosis. VA recognized this inconsistency and ordered a clarifying opinion. The addendum opinion was obtained in January 2018 in which a different examiner stated, “There is no diagnosis of radiculopathy. There were no objective findings on the exam, strength and sensation were intact. The one finding of 1+ reflex is not enough to warrant a diagnosis.” Although an in-person examination took place, no additional findings were noted. The parties concluded that this statement was inconsistent with the prior findings of neurological problems with sciatic nerve root involvement. The parties agreed that the VA clinicians did not reconcile the apparent contradictions between their conclusions of “no diagnosis” and “no objective findings” with the objective findings contained in the December 2017 examination report and elsewhere that tend to support a diagnosis or disability.

Due to the inconsistencies documented within the Joint Remand, the Board finds that remand is warranted to obtain a new VA examination.

The matters are REMANDED for the following action:

1. Obtain updated VA treatment records from September 2018 to the present.

Schedule the Veteran for a VA examination to determine if the Veteran has a diagnosis of radiculopathy in the lower extremities. The claims file should be made available for review by the VA examiner. All appropriate testing should be accomplished, and all clinical findings should be reported in detail. 

 

 

A. P. SIMPSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Wonderling, 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.