Citation Nr: 21003199 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-26 995 DATE: January 19, 2021 REMAND Entitlement to a rating in excess of 20 percent for left lower extremity (LLE) radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity (RLE) radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1977 to March 1980. This matter originally came to the Board of Veterans’ Appeals (Board) from an October 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied ratings in excess of 10 percent for LLE and RLE radiculopathy. The Veteran filed a timely notice of disagreement received by VA in October 2013. In May 2015, the RO issued a statement of the case. The Veteran’s substantive appeal was received by VA in July 2015. In a September 2018 decision, the Board, in pertinent part, denied ratings in excess of 10 percent for the Veteran’s LLE and RLE radiculopathy. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in August 2019, the Veteran’s attorney and VA’s General Counsel filed a Joint Motion for Partial Remand. In a September 2019 order, the Court granted the motion, vacated that portion of the Board’s September 2018 decision which denied ratings in excess of 10 percent for LLE and RLE radiculopathy, and remanded the matter to the Board for action consistent with the Joint Motion. In a March 2020 decision, the Board remanded the matter for further development. While the matter was in remand status, in a November 2020 rating decision, the RO increased the ratings for the Veteran’s LLE and RLE radiculopathy to 20 percent, effective June 13, 2012, the date of receipt of the claim for increase. Increased Rating 1. Entitlement to a rating in excess of 20 percent for LLE radiculopathy. 2. Entitlement to a rating in excess of 20 percent for RLE radiculopathy. On his July 2015 substantive appeal of the issues of entitlement to ratings in excess of 10 percent for RLE and LLE radiculopathy, the Veteran argued that because he had reported “tingling – pins and needles – and numbness throughout the left leg,” he was entitled to “the higher evaluation – especially on the left, for the obviously moderate nerve deficit.” See July 2015 Substantive Appeal. Since the November 2020 rating decision awarding 20 percent ratings for RLE and LLE radiculopathy, VA has received no additional argument about why ratings in excess of 20 percent are warranted. The Board observes that after the RO last considered the claims in the November 2020 supplemental statement of the case, and before the record was transferred to the Board in January 2021, additional pertinent evidence was received from the Veteran. This evidence includes private treatment records received in December 2020. Because the AOJ has not yet considered this additional evidence, and it was received before the matter was transferred to the Board, a remand is necessary for the RO to consider the evidence in the first instance. 38 C.F.R. § 19.37 (“Evidence received by the agency of original jurisdiction prior to transfer of the record to the Board . . . will be referred . . . for proper review and disposition. If the Statement of the Case and any prior Supplemental Statement of the Case were prepared before the receipt of the additional evidence, a Supplemental Statement of the Case will be furnished.”). In addition, the Board finds that an additional VA medical examination is necessary. In the joint motion for partial remand discussed above, the parties noted that at a September 2012 VA examination, the examiner had noted the presence of bilateral mild incomplete paralysis of the sciatic nerve, external popliteal nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, and external cutaneous nerve of the thigh. The examiner also noted moderate incomplete paralysis of the anterior crural nerve on the right, and mild incomplete paralysis on the left. The remaining examinations of record, however, note only involvement of the sciatic nerves. Pursuant to the Board’s March 2020 remand, the Veteran was afforded a VA medical examination in November 2020. The examiner identified moderate radiculopathy of the bilateral sciatic nerves with sensory only involvement. She did not, however, address the previously-identified involvement of other peripheral nerves. For this reason, another examination is necessary. The matters are REMANDED for the following action: Afford the Veteran an appropriate VA examination to determine the severity of his service-connected radiculopathy of the lower extremities. Access to the Veteran’s claims file must be provided to the examiner for review in connection with the examination. All indicated studies should be conducted, to include EMG/NCV testing if determined necessary by the examiner. After examining the Veteran and reviewing the record, the examiner should identify the current nature and severity of all manifestations of the Veteran’s bilateral lower extremity radiculopathy. The examiner must specifically identify the affected nerve root(s). In this regard, a September 2012 VA nerve examiner noted the presence of bilateral mild incomplete paralysis of the sciatic nerve, external popliteal nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, and external cutaneous nerve of the thigh. The September 2012 examiner also noted moderate incomplete paralysis of the anterior crural nerve on the right, and mild incomplete paralysis on the left. The remaining evidence of record, however, does not identify involvement beyond the sciatic nerve. If the examiner does not identify involvement beyond the sciatic nerve, he or she should discuss the significance of the September 2012 examination findings. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, 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.