Citation Nr: 21062490 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-28 806A DATE: October 7, 2021 REMANDED Entitlement to a separate compensable evaluation for left lower extremity radiculopathy is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to June 20, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from August 1978 to July 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal arise from the Veteran's appeal for a higher evaluation for chronic strain, lumbar spine. In a July 2020 correspondence, the Veteran withdrew his request for a Board hearing. In the most recent remand in April 2021, the Board remanded the issues on appeal for additional development. As discussed below, there has not been substantial compliance with the April 2021 remand instructions, so the matters must be remanded. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In a July 2021 rating decision, the Veteran was granted entitlement to a TDIU, effective June 20, 2020. Because the Veteran's TDIU claim has not been granted for the entire disability rating period on appeal, this issue remains on appeal and has been characterized as entitlement to a TDIU prior to June 20, 2020. See Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to a separate compensable evaluation for left lower extremity radiculopathy is remanded. In the April 2021 remand, the Board found that the February 2021 VA examination contained contradictory findings and that no electrodiagnostic studies had been conducted. Further, the Board indicated that all the relevant testing, including straight leg raising, had not been performed during the examination. Accordingly, the Board found that a new VA examination was required to determine whether the Veteran had a nerve disorder of the left lower extremity, to include left lower extremity radiculopathy associated with his service-connected chronic strain, lumbar spine. In July 2021, the Veteran was afforded a VA peripheral nerves examination. The July 2021 VA examiner found that the Veteran had symptoms of left lower extremity pain, paresthesias and/or dysesthesias, and numbness attributable to a peripheral nerve condition. No sensory examination results could be obtained due to pain which affected the Veteran's ability to concentrate and give reliable answers. There were no electromyography studies obtained. The July 2021 VA examiner determined that a reliable neurological examination could not be done on this Veteran due to pain and an inability to concentrate. Further neurological testing was needed in order to get more reliable results. Although the July 2021 VA examiner found that the Veteran's history was suggestive of a radiculopathy of the left lower extremity, the July 2021 VA examiner explained that it had to be diagnosed by objective findings in this case of a nerve conduction velocity study. Despite these findings, the RO did not order any additional testing or request a new VA examination. The Board finds that the July 2021 VA examination is inadequate for rating purposes and did not substantially comply with the April 2021 remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, a remand is required to obtain a new VA examination to determine whether the Veteran has left lower extremity radiculopathy or any other nerve disorder of the left lower extremity. 2. Entitlement to a TDIU prior to June 20, 2020 is remanded. The Veteran's claim for entitlement to a TDIU prior to June 20, 2020 may be affected by the outcome of his separate compensable evaluation claim for left lower extremity radiculopathy. Thus, it would be premature to adjudicate the TDIU claim until the separate compensable evaluation claim has been considered. Therefore, the issues are inextricably intertwined, and the TDIU claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's left lower extremity radiculopathy that are not currently of record. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the whether the Veteran has a nerve disorder of the left lower extremity, to include left lower extremity radiculopathy associated with service-connected chronic strain, lumbar spine. (a.) All necessary testing should be conducted to confirm or rule out the presence of left lower extremity radiculopathy, and the clinician should expressly indicate the type of findings and/or testing required to confirm or rule out the presence of left lower extremity radiculopathy. (b.) Obtain a complete medical history as to the nature and onset of the Veteran's left lower extremity symptoms (e.g. numbness, pain, tingling) along with treatment if any. (c.) Identify the nature and cause of the Veteran's reported symptoms, or explain why this is not possible. (d.) Indicate whether there are objective findings for left lower extremity abnormal pathology consistent with left lower extremity radiculopathy or another nerve disorder (if yes, identify). The clinician is not required to accept the Veteran's history of symptoms, onset, or treatment. However, s/he must provide a complete explanation for any history discounted or rejected. If an answer to any of the above matters cannot be made without resort to speculation, then the clinician must indicate 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Then, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU prior to June 20, 2020. If the benefits sought on appeal are not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.