Citation Nr: A21016705 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 200518-84425 DATE: October 13, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND The Veteran had served on active duty from April 2010 to April 2015. In November 2019, the Veteran submitted VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested a review of the October 2019 rating decision denying service connection for right lower extremity radiculopathy, based on new and relevant evidence. In January 2020, the agency of original jurisdiction (AOJ) issued the rating decision on appeal, which found that new and relevant evidence had been received, granted service connection for radiculopathy of the Veteran's right lower extremity, and assigned an initial evaluation of 10 percent. In May 2020, the Veteran filed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), seeking a higher initial rating for his service connected right lower extremity radiculopathy. The Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the January 2020 AOJ decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. The Veteran contends that the radiculopathy of his right lower extremity is more severe than the 10 percent rating initially assigned. He seeks an increase. In December 2019, the Veteran was afforded an in -person VA Peripheral Nerve Conditions examination. The examiner indicated he reviewed evidence contained within the Veteran's electronic folder. The diagnosis assigned was right lower extremity radiculopathy affecting the sciatic nerve. The examiner specifically noted that no electromyography (EMG) studies were performed and that there were no significant objective diagnostic test findings and/or results. The Board finds the December 2019 VA examination inadequate for rating purposes because it based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458 (1993). In particular, VA treatment records indicated that the Veteran underwent an EMG study in November 2017 which identified abnormalities of the right tibial nerve and a right leg muscle. It is unclear to the Board whether the EMG findings reflect radiculopathy, neuropathy, or both. It is also unclear what factor if any, consideration of the EMG results would have played in the examiner's determination of the severity of the Veteran's service connected right lower leg disability. Further, the December 2019 VA examiner did not address the Veteran's lay statements including his July 2019 Statement in Support of Claim where he indicated that he experienced nerve pain daily which worsens with physical activity and flareups at least every two weeks where the pain occurs without any physical activity or trauma occurring. Based upon a review of the evidence of record, the Board finds that remand to cure a pre - decisional duty to assist error and afford the Veteran an adequate medical examination which properly assesses the severity and current manifestation of his service-connected right lower extremity sciatic radiculopathy is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). This matter is REMANDED for the following action: The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected right lower extremity sciatic radiculopathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. (a.) The examiner is requested to review all pertinent records associated with the claims file, to specifically include the November 2017 EMG results and note that review on their report. (b.) The examiner should address the Veteran's lay statements regarding factual matters of which he has first-hand knowledge, including observable symptomatology and flareups. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. (c.) The examiner should report all signs and symptoms necessary for rating the Veteran's right lower extremity radiculopathy under the rating criteria. In particular, the examiner should indicate whether, with specific consideration of the 2017 EMG results, if the tibial nerve is impacted and if so, to what extent. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.