Citation Nr: 21062456 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-30 748 DATE: October 7, 2021 ORDER An initial rating in excess of 20 percent for a low back disability is denied. Service connection for a left foot disability, to include as due to low back disability, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and insomnia/anxiety, to include as due to the low back disability, is remanded. An initial rating in excess of 20 percent for radiculopathy of the left lower extremity is remanded. An initial rating in excess of 20 percent for radiculopathy of the right lower extremity, is remanded. FINDINGS OF FACT 1. The weight of the weight of the competent and probative evidence is against finding that the low back disability resulted in forward flexion to 30 degrees or less, ankylosis, or intervertebral disc syndrome (IVDS). 2. The competent and probative evidence is at least in equipoise as to whether the Veteran's current left foot disability had its onset in or is otherwise related to the Veteran's period of active service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a low back disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5242. 2. The criteria for entitlement to service connection for left foot disability are met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2015 to December 2015. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been before the Board previously. In July 2018 the Board remanded for additional development the issues of service connection for a left knee disability, left foot disability, and an acquired psychiatric disorder, and increased rating for left epididymitis and a low back disability. Additionally, in October 2020 the Board again remanded the issues on appeal because the August 2019 VA foot conditions and psychiatric examinations did not consider the entire record when rendering their opinion. Further, it found that the August 2019 VA thoracolumbar and radiculopathy examination did not comply with the requirements set forth by Sharp v. Shulkin, 29 Vet. App. 26 (2017). After a September 2021 supplemental statement of the case considered the record, this matter was returned to the Board for appellate consideration. While the appeals for increased ratings for the low back disability and bilateral lower extremity radiculopathy were pending, a March 2020 rating decision granted an increased rating of 20 percent for the low back disability and bilateral lower extremity radiculopathy, effective August 12, 2019. Additionally, in October 2020, the Board granted an increased rating of 20 percent for the low back disability and bilateral lower extremity radiculopathy from December 12, 2015, to August 11, 2019. Although increased ratings were granted, the issues remain in appellate status as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Furthermore, in July 2018 the Board denied service connection for a right testicle disability. As such, this issue is not within the Board's jurisdiction at this time and will not be discussed further. Additionally, the Board notes that in July 2018, the Board remanded the issue of an increased compensable rating for left epididymitis since the Veteran filed a timely notice of disagreement; however, a statement of the case had not been issued. Subsequently, a statement of the case was issued in March 2020; however, the Veteran did not file a timely Form 9. As such, the claim for an increased compensable rating for left epididymitis is not on appeal before the Board. Finally, in October 2020 the Board granted service connection for a left knee disability. As such, this matter is no longer on appeal due to the full grant of the service connection benefit sought and they will not be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Increased rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71(a) (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71(a) [or 4.73] criteria."). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes "additional functional loss i.e., 'the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance including as due to pain and/or other factors" or "reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination." Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. An initial rating in excess of 20 percent for a low back disability. The Veteran asserts that he is entitled to a higher rating for his low back disability. Under the General Rating Formula for the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine limited to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., Note (1). Alternatively, a back disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a ten percent evaluation requires incapacitating episodes having a total duration of at least one week, but less than 2 weeks during the past 12 months, and 20 percent evaluating requires incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months. Id. DC 5243. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks, but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. There is no corresponding note allowing for the separate evaluation of any associated neurologic abnormalities. 38 C.F.R. § 4.71a. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine directs that rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. "The question of whether a particular medical issue is beyond the competence of a laypersonincluding both claimants and Board membersmust be determined on a case-by-case basis." Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). In this case, the Board is competent to observe that voluntary range of motion testing is going to be more favorable to the Veteran than involuntary range of motion testing. In DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1592 (32nd ed. 2012), range of motion redirects the reader to "exercise." Passive exercise "is motion imparted to a segment of the body by another individual, machine, or other outside force, or produced by voluntary effort of another segment of the patient's own body." Id. at 658. Active exercise is "motion imparted to a part by voluntary contraction and relaxation of muscles controlling the part." It is reasonable from these definitions to conclude that active motion is the more difficult of the two types of motion to perform because it is done without assistance from external forces, which would be capable of pushing the Veteran's joint farther than he would be able to move it on his own. Therefore, active motion is more favorable to the Veteran, and the results of active motion testing were provided. Similarly, it is reasonable to conclude that non-weightbearing motion is less difficult than weightbearing motion. Therefore, the Board will evaluate the Veteran's range of motion using the available findings of active range of motion and looking at all the relevant medical and lay evidence. The record shows that the Veteran is currently rated at 20 percent effective December 12, 2015, to August 12, 2019, under DC 5237 and later adjusted to DC 5243 under the General Rating Formula for Diseases and Injuries of the Spine. The question for the Board is whether higher or separate ratings are warranted. The Board finds that a rating in excess of 20 percent is not warranted for the Veteran's service-connected low back disability. Turning to the evidence, the Veteran underwent a VA examination in March 2016. The Veteran reported experiencing flare-ups upon prolonged sitting and standing, repetitive bending at the waist, and with lifting, carrying, and pushing objects. However, the Veteran reported no functional loss during flare-ups. The objective examination showed that the Veteran had forward flexion of 80 degrees, extension of 25 degrees, left lateral flexion of 30 degrees, right lateral flexion of 30 degrees, right lateral rotation of 30 degrees, and lateral rotation of 30 degrees. Additionally, the examiner noted that the Veteran's range of motion itself did not contribute to functional loss. Further, the examiner reported that the Veteran had pain with all range of motion, but it did not cause functional loss. In addition, there was no evidence of pain with weight bearing and the examiner noted no additional loss of function or range of motion after three repetitions. Furthermore, the examiner reported that he was unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limit the Veteran's functional ability with repeated use or during flare-ups. Moreover, the Veteran had normal strength, sensation, reflexes, and straight leg raising test result. He also had mild back tenderness; however, it did not result in an abnormal gait or spinal contour. Additionally, he had no muscle spasms, radiculopathy, guarding, muscle atrophy, ankylosis, neurologic abnormalities, or IVDS. The Veteran used a brace occasionally. Finally, regarding functional impact, the examiner reported that the Veteran should avoid lifting, carrying, pushing, and pulling heavy objects, and avoid prolonged standing and sitting activities. See 3/22/2016 C&P Examination. However, the Board finds this examination inadequate. Regarding the Veteran's contentions of experiencing flare-ups, it does not seem like the examiner made any attempts to elicit information from the Veteran to determine his range of motion during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; Sharp, 29 Vet. App. 26 (holding that when conducting evaluations for musculoskeletal disabilities, VA examiners must inquire whether there are periods of flare-ups and, if the answer is yes, state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the veteran, to what extent, if any, they affect functional impairment). As such, the Board affords this opinion little weight. Another VA examination was conducted in August 2019. Regarding flare-ups, the Veteran reported that he experienced difficulty bending, walking, and sitting; however, the Veteran reported no functional loss during flare-ups. The objective examination showed that the Veteran had forward flexion of 45 degrees, extension of 20 degrees, left lateral flexion of 25 degrees, right lateral flexion of 25 degrees, right lateral rotation of 20 degrees, and lateral rotation of 20 degrees. Additionally, the examiner noted that the Veteran's range of motion itself did not contribute to functional loss. Further, the examiner reported that the Veteran had pain with all range of motion, but it did not cause functional loss. In addition, there was no evidence of pain with weight bearing and the examiner noted no additional loss of function or range of motion after three repetitions. Furthermore, the examiner reported that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with repeated use or during flare-ups. Moreover, the examiner reported that pain caused less movement than normal, disturbance in locomotion, and an interference with sitting and standing. Additionally, the Veteran had normal strength, sensation, and reflexes, and an abnormal straight leg raising test result. He also had no back tenderness, muscle spasms, guarding, muscle atrophy, ankylosis, neurologic abnormalities, or IVDS. The Veteran did not use an assistive device. Finally, regarding functional impact, the examiner reported that the Veteran was unable to sit or stand for long periods, and had difficulty climbing stairs. See 8/13/2019 C&P Examination. However, the October 2020 Board remand found this examination inadequate. The record showed that the examiner made no attempts to elicit information from the Veteran to determine his range of motion during flare-ups and, as such, the examination did not comply with the Sharp requirements. See Sharp, 29 Vet. App. 26. As such, the Board affords this opinion little weight. The most recent VA examination was conducted in August 2021. Regarding flare-ups, the Veteran reported that he experiences a "stabbing, aching pain 10/10" with prolonged walking and standing, 15 times per month, that last for one day. Regarding functional loss, the Veteran reported that he cannot bend to pick up objects or a pet or walk or stand for prolonged periods. The objective examination showed that the Veteran had forward flexion of 70 degrees, extension of 20 degrees, left lateral flexion of 28 degrees, right lateral flexion of 28 degrees, right lateral rotation of 28 degrees, and lateral rotation of 28 degrees. Additionally, the examiner reported that the Veteran had pain with all active and passive range of motion, weight-bearing, non-weight-bearing, and on rest, which caused decreased range of motion, difficulty standing from a seated position, and an inability to walk or stand for prolonged periods. Further, the examiner reported that pain and fatigability would significantly limit the Veteran's functional ability with repeated use; the Veteran would have forward flexion of 68 degrees, extension of 18 degrees, right lateral flexion of 25 degrees, left lateral flexion of 25 degrees, right lateral rotation of 25 degrees, and left lateral rotation of 25 degrees. In addition, the examiner reported that pain, weakness, and lack of endurance would significantly limit the Veteran's functional ability with flare-ups; the Veteran would have forward flexion of 68 degrees, extension of 18 degrees, right lateral flexion of 25 degrees, left lateral flexion of 25 degrees, right lateral rotation of 25 degrees, and left lateral rotation of 25 degrees. Moreover, the Veteran had difficulty sitting and standing, and less movement caused by painful walking. Also, he had back tenderness, crepitus, and muscle spasms; however, it did not result in an abnormal gait or abnormal spinal contour. Additionally, he had normal strength and reflexes, an abnormal straight leg raising test result, decreased sensation in his bilateral lower extremities, and no guarding, muscle atrophy, ankylosis, neurologic abnormalities, or IVDS. The Veteran used a brace occasionally. Finally, regarding functional impact, the examiner reported that the Veteran has difficulty standing from a seated position and cannot bend to pick up objects or stand or walk for prolonged periods. See 9/10/2021 C&P Examination. The Board finds the August 2021 VA examination to be adequate for rating purposes, as it is based on in-person examination of the Veteran, objective testing, and medical expertise. The Board finds that the medical and lay evidence is sufficient to allow it to render a decision that addresses the Mitchell and DeLuca criteria. The Board finds that the weight of the competent and probative evidence is against a finding that the Veteran's low back disability resulted in limitation of forward flexion to 30 degrees or less, ankylosis, or prescribed periods of bed rest due to IVDS. See, e.g., 9/10/2021 C&P Examination. Further, while the Veteran had/has tenderness, crepitus, and muscle spasms; such did not result in an abnormal gait or abnormal spinal contour. Additionally, he had normal strength and reflexes. The Board finds such evidence tends to weigh against a finding of functional ankylosis. The Board also acknowledges the above-mentioned Veteran's contentions that he experiences a "stabbing, aching pain 10/10" with prolonged walking and standing and he cannot bend to pick up objects or a pet or walk or stand for prolonged periods. See 9/10/2021 C&P Examination. However, the weight of the evidence does not support a finding that the Veteran's disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. The Board finds that the current rating already contemplates and compensates the Veteran for any functional loss due to pain, fatigability, weakness, and incoordination during flare-ups and after repeated use over time. In light of the foregoing, the Board finds that a rating in excess of 20 percent for a low back disability is not warranted. 2. Service connection for a left foot disability, to include as due to low back disability. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran contends service connection for a left foot disability. At the outset, the Board notes that the Veteran has a diagnosis of left foot neuropathy. See 4/29/2016 C&P Examination. Additionally, he was diagnosed with plantar fasciitis. See 8/13/2019 C&P Examination. Therefore, the first element of service connection is met. The Board will now analyze whether service connection is warranted by analyzing the second and third elements of service connection. As to the second element of service connection, the Veteran contends that his disabilities are due to an in-service accident; he was rappelling down at a tower, his hands slipped the rope, and he fell to the ground. See 3/29/2017 NOD. The Board finds the Veteran to be credible in describing his in-service incident as it is consistent with other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007); see also Miller v. Wilkie, 32 Vet. App. 249, 254 (2020) (stating that the duty to assist also includes addressing a veteran's lay reports of symptoms). Additionally, he contends that his left foot disability is secondary to his low back disability. See 1/15/2016 VA 21-526EZ. The Veteran is service connected for a low back disability. Thus, the second element of service connection has been met. The question before the Board therefore becomes whether there is a so-called "nexus" between the Veteran's current left foot disability and service. The Veteran underwent a VA foot conditions examination in April 2016 and was diagnosed with left foot neuropathy. At the conclusion of the examination, the examiner opined that the Veteran's left foot disability was less likely than not proximately due to the Veteran's service-connected disabilities. As rationale, the examiner stated that the Veteran did not have any disability that could be secondary to his low back disability. See 4/29/2016 C&P Examination. However, the July 2018 Board remand found this examination inadequate. The Board noted that the examiner failed to address whether the Veteran's left foot neuropathy was caused by or related to service and whether it is secondary to the Veteran's back disability. The examiner only stated that the Veteran did not have a joint condition that is related to his back disability. Furthermore, the Board noted that the examiner's suggestion that the Veteran "could" experience radiculopathy throughout his entire leg as secondary to the Veteran's back condition warranted further investigation. As such, the Board affords this opinion little weight. In August 2019 the Veteran underwent another VA foot conditions examination. The Veteran was diagnosed with right calcaneal spur. At the conclusion of the examination, the examiner opined that the Veteran's left foot disability was less likely than not incurred in or caused by service. The examiner further stated that the Veteran did not have a diagnosis of left foot neuropathy. See 8/13/2019 C&P Examination. However, the October 2020 Board remand found this examination inadequate. The Board noted that the examiner found that the Veteran did not have a diagnosis of left foot neuropathy. However, the Board further notes that the April 2016 VA examination found a diagnosis of left foot neuropathy. This finding is in direct contradiction with the findings of the April 2016 VA examination. As such, the Board affords this opinion little weight. The most recent VA examination was in August 2021. The Veteran was diagnosed with plantar fasciitis. At the conclusion of the examination, the examiner opined that the Veteran's left foot disability was less likely than not incurred or caused by service. As rationale, the examiner stated that the record showed no objective evidence of a separate diagnosis of left foot neuropathy and that it is subsumed by the Veteran's service-connected bilateral lower extremity sciatic radiculopathy. Additionally, the examiner opined that the Veteran's left foot disability was less likely than not due to his service-connected disabilities. As rationale, the examiner cited medical literature to conclude that the Veteran's plantar fasciitis was due to high impact exercise and rappelling instead of the Veteran's low back disability. See 9/10/2021 C&P Examination. Although the reviewing clinician purported to render a negative opinion, the statement that the Veteran's "plantar fasciitis is due to his high impact exercise and rappelling not the [V]eteran's diagnosed back condition," seems to support a finding that the Veteran's disability is as likely as not related to service, in particular, his rappelling actions in service.. Therefore, the Board finds this opinion can be read as tending to support the claim. Based on the above, and resolving any doubt in favor of the Veteran, the Board finds credible the Veteran's contentions that his left foot disability began and has continued since service. 38 C.F.R. §§ 3.102, 3.303(a). Service connection for a left foot disability, to include plantar fasciitis, is therefore warranted. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder, to include insomnia/anxiety, and anxiety disorder, to include as due to the low back disability. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends entitlement to service connection for an acquired psychiatric disorder. Post-service treatment records showed that the Veteran was diagnosed with an anxiety disorder in 2019 and insomnia/anxiety in 2017. See 3/19/2020 CAPRI, at pages 2 and 99. The Veteran contends that his acquired psychiatric disorder is secondary to his service-connected low back disability. See 1/15/2016 VA 21-526EZ. As stated above, this issue has been remanded previously. In light of this, the Board regrets the additional delay, but finds another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, the Board finds a remand is necessary to comply with the October 2020 Remand directives, which noted that the August 2019 VA examination found that the Veteran had no psychiatric disorder diagnosis. However, the Board noted that VA treatment records showed that the Veteran had been diagnosed with psychiatric disorders, such as an anxiety disorder and insomnia/anxiety. As such, the Board directed the Agency of Original Jurisdiction (AOJ) to schedule a psychiatric VA examination to determine if the Veteran has an acquired psychiatric disability. The Board further directed the examiner to identify each psychiatric disorder present, to include an anxiety disorder, anxiety, and insomnia, and determine if they are related to service. The Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Substantial, not strict, compliance is needed. In accordance with the October 2020 Board remand, a March 2021 examination was administered, and the examiner concluded that the Veteran did not have a diagnosis of any psychiatric disorder and that as such, no opinion was warranted. See 3/23/2021 C&P Examination. However, the Board finds this examination inadequate. The examiner did not address whether or not the diagnosed disorders in the record at the time of the March 2021 VA examination, to include an anxiety disorder, anxiety, and insomnia were related to service or proximately due to the Veteran's service-connected low back disability. As such, on remand, the AOJ should schedule a VA psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder, to include an anxiety disorder, anxiety, and insomnia, and address any relationship to service. 2. An initial rating in excess of 20 percent for radiculopathy of the left lower extremity. 3. An initial rating in excess of 20 percent for radiculopathy of the right lower extremity. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran asserts that he is entitled to a disability rating in excess of 20 percent for radiculopathy of the bilateral lower extremities. As stated above, this issue has been remanded previously. In light of this, the Board regrets the additional delay, but finds another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, the Board finds a remand is necessary to comply with the October 2020 Remand directives, to indicate whether the impairment is in the nature of a neuritis, a neuralgia, and/or paralysis, or if there was paralysis, whether the paralysis was complete or incomplete and, if it was incomplete, whether the incomplete paralysis was best characterized as mild, moderate, moderately severe, or severe. As mentioned above, the Court has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Substantial, not strict, compliance is needed. In accordance with the October 2020 Board remand, an August 2021 thoracolumbar examination was conducted. The examiner stated that the Veteran had moderate intermittent pain, numbness, and paresthesias/dysesthesias involving the sciatica nerve of his bilateral lower extremities. See 9/10/2021 C&P Examination. However, the examiner did not indicate whether the impairment is in the nature of a neuritis, a neuralgia, and/or paralysis, or if there was paralysis, whether the paralysis was complete or incomplete and, if it was incomplete, whether the incomplete paralysis was best characterized as mild, moderate, moderately severe, or severe, as directed by the October 2020 Board remand. As such, on remand, the AOJ should schedule a VA peripheral nerves examination to determine the nature, extend, and severity of the Veteran's service-connected bilateral lower extremities radiculopathy. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding records from appropriate repositories. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 2. After completing directive #1, schedule the Veteran for a psychiatric examination by an appropriate clinician to identify any acquired psychiatric disorder, to include an anxiety disorder, anxiety, and insomnia, or any other psychiatric disorder since the period on appeal (shortly before and/or since December 11, 2015, to the present day). A copy of this remand request should also be provided. The examiner must make clear whether the Veteran has or has not had any acquired psychiatric disorder during the period on appeal. Additionally, if the examiner disagrees with any diagnosis or lack thereof during the period on appeal, the examiner must explain why. After a review of the claims file, the reviewing clinician must address: (a.) Compile a list of all current psychiatric disorders. (b.) For EACH disorder identified on the current examination, state whether it is at least as likely as not (approximately 50 percent or greater probability), that any of the Veteran's current psychiatric disorders (present at any time since December 11, 2015), to include an anxiety disorder, anxiety, and insomnia, in whole or part, had their onset in service. (c.) For EACH disorder identified on the current examination, state whether it is at least as likely as not (approximately 50 percent or greater probability), that any of the Veteran's current psychiatric disorders (present at any time since December 11, 2015), to include an anxiety disorder, anxiety, and insomnia, were either 1) proximately due to OR 2) aggravated by any service-connected disability, to include the low back disability. If aggravation is found, please state, to the extent possible, the baseline level of disability prior to aggravation. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completing directive #1, schedule the Veteran for a Peripheral Nerves examination by an appropriate clinician to determine his current symptomatology related the Veteran's bilateral lower extremities radiculopathy. Report the frequency, severity, and duration of all related symptomatology and any functional impacts on the appropriate worksheet(s). As to the Veteran's radiculopathy of the right lower extremity and radiculopathy of the left lower extremity. The affected nerve(s) should be expressly identified. For each affected nerve, the examiner must specifically indicate whether the impairment is in the nature of a neuritis, a neuralgia, and/or paralysis. (Continued on the next page) If paralysis of any nerve is identified, the examiner must indicate whether the paralysis is complete or incomplete and, if it is incomplete, whether the incomplete paralysis is best characterized as mild, moderate, moderately severe, or severe. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.