Citation Nr: 21002610 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 19-07 599 DATE: January 14, 2021 REMANDED The issue of an increased rating for right lower extremity radiculopathy of the femoral nerve is remanded. The issue of an increased rating for left lower extremity radiculopathy of the femoral nerve is remanded. The issue of an effective date prior to September 30, 2017, for the grant of service connection for right lower extremity radiculopathy of the femoral nerve is remanded. The issue of an effective date prior to September 30, 2017, for the grant of service connection for left lower extremity radiculopathy of the femoral nerve is remanded. REASONS FOR REMAND The Veteran served on active duty served in the Army from December 1965 to November 1967. These matters come before the Board of Veterans’ Appeals (Board) from a December 2017 rating decision. In a September 2019 decision, the Board remanded these matters for the purpose of obtaining a VA examination. The claim has since been returned to the Board for review. Although the Board regrets the delay in yet another remand, for the reasons indicated in the discussion below, the agency of original jurisdiction (AOJ) has not substantially complied with the remand directives and further action is necessary in this regard. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand directive). In the September 2019 decision, the Board found that a remand was required because it was unable to determine which of the Veteran’s neurological symptoms are attributable to the service-connected sciatic nerve disability versus the service-connected femoral nerve disability; thus, the Board could not determine whether increased ratings were warranted for the Veteran’s radiculopathy of the femoral nerve of the bilateral legs. Further, regarding the claims of an earlier effective date for the grant of service connection for radiculopathy of the femoral nerve of the bilateral legs, the Board indicated that it could not determine whether symptoms of radiculopathy of the femoral nerve of the bilateral legs were demonstrated prior to September 30, 2017. Following the September 2019 remand, the Veteran underwent a VA examination in December 2019 and was also provided addendum VA examination opinions in September 2020 and November 2020. First, in the December 2019 VA examination, the Veteran reported that for many years he has experienced pain, numbness, and tingling in the bilateral lower extremities. The VA examiner determined that the severity of the right lower extremity radiculopathy of the femoral nerve is mild incomplete paralysis and that the severity of the left lower extremity radiculopathy of the femoral nerve is moderate incomplete paralysis. In an addendum VA examination opinion provided in September 2020, the examiner stated that the severity of the left lower extremity radiculopathy of the femoral nerve is moderate incomplete paralysis as evidenced by his altered gait with limp, decreased sensation, and decreased strength. The examiner also stated that the severity of the right lower extremity radiculopathy of the femoral nerve is mild incomplete paralysis as evidenced by his altered gait with limp, decreased sensation, and normal strength. In an addendum VA examination opinion provided in November 2020 regarding the Veteran’s neurological symptoms, the examiner stated that it appears that the Veteran is experiencing femoral nerve involvement as well as sciatic nerve involvement and not a separate nerve etiology. The Board finds that the addendum VA examination opinion provided in November 2020 is inadequate. In the September 2019 remand, the Board specifically requested in the remand directives that the VA examiner specify all neurological symptoms and functional impairment of the bilateral lower extremities and state whether such symptoms and/or functional impairment are attributable to the femoral nerve, the sciatic nerve, or a separate nerve/etiology. In the November 2020 VA examination addendum opinion, the examiner merely stated that the Veteran’s symptoms are attributable to the femoral nerve and sciatic nerve rather than a separate nerve etiology and failed to specify which symptoms are attributable to the sciatic nerve versus the femoral nerve. Therefore, the Board does not have the information necessary to properly assign disability ratings for the Veteran’s radiculopathy of the femoral nerve of the bilateral legs. When VA obtains an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the matter must be remanded for a new examination. Additionally, regarding the matters of earlier effective dates for the grant of service connection for the Veteran’s radiculopathy of the femoral nerve of the bilateral legs, the Board notes that the Veteran did not specifically file a claim of service connection for radiculopathy of the femoral nerve of the bilateral legs; however, it is considered part of his claim of an increased rating for his service-connected spine disability, which was filed on May 28, 2014. As noted above, in the September 2019 remand, the Board indicated that it could not determine whether symptoms of radiculopathy of the femoral nerve of the bilateral legs are demonstrated prior to September 30, 2017. Presently, the Board notes that the Veteran’s radiculopathy of the femoral nerve of the bilateral legs was not noted during the July 2014 VA examination and was first diagnosed during the September 2017 VA examination; however, as noted above, during the December 2019 VA examination the Veteran reported that for many years he has experienced pain, numbness, and tingling in the bilateral lower extremities. Thus, the Board finds that a retrospective VA examination is warranted to attempt to determine the onset of the Veteran’s radiculopathy of the femoral nerve of the bilateral legs. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity and symptomology of the Veteran’s radiculopathy of the femoral nerve of the bilateral legs. The claims folder must be made available to and be reviewed by the examiner. The examiner should address the following: a. Identify all neurological symptoms and functional impairment of the bilateral lower extremities and state which symptoms and/or functional impairment are attributable to 1) the femoral nerve; 2) the sciatic nerve; or, 3) a separate nerve/etiology. b. Provide a retrospective opinion to determine the onset of the Veteran’s radiculopathy of the femoral nerve of the bilateral legs, specifically including whether it manifested prior to September 30, 2017. In providing the requested opinion, the examiner should consider and discuss all pertinent medical and lay evidence of record, to include the Veteran’s competent assertions as to the nature, onset, and continuity of such symptoms. Notably, the absence of documented evidence of a diagnosis or associated symptoms prior to the September 30, 2017 VA examination should not, alone, serve as the sole basis for a negative opinion. The examiner should also consider all lay statements submitted by the Veteran regarding his disability. A rationale for all opinions is to be provided. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Page-Nelson, 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.