Citation Nr: 21071999 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 10-15 071 DATE: December 2, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to October 5, 2021, and in excess of 20 percent thereafter, is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy prior to October 5, 2021, and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1984 to June 1984 and from December 2003 to March 2005. These matters are before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Court). This case originally came before the Board on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case has a long procedural history, as outlined by the Board in a February 2021 decision; for the sake of brevity, it will not be repeated herein. Most recently, the Board remanded these matters in July 2021 for additional development. Subsequent to such development, an October 2021 rating decision awarded the Veteran an increased 20 percent rating for his right and left lower extremity radiculopathy effective October 5, 2021. As these increases constitute a partial grant of the benefit sought, the increased rating claims remains on appeal and have been recharacterized accordingly. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). Unfortunately, the Board is not satisfied that there was substantial compliance with its prior remand; therefore, the appeal must be remanded once again. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand). 1. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy prior to October 5, 2021, and in excess of 20 percent thereafter, is remanded. 2. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy prior to October 5, 2021, and in excess of 20 percent thereafter, is remanded. The Veteran seeks initial increased ratings for his service-connected right and left lower extremity radiculopathy, which he contends is more severe than reflected by his currently-assigned disability ratings. The Board notes that it has remanded the Veteran's increased rating claims three times in May 2020, February 2021, and July 2021 in order to afford the Veteran diagnostic testing, such as an electromyography (EMG) study or nerve conduction study (NCS), to evaluate the current severity of his lower extremity radiculopathy. The Board has previously noted that such specialized testing is necessary due to a history of inconsistent reporting of symptoms by VA examiners, which seems to indicate a change or fluctuation in the severity of the Veteran's condition that has, thus far, not been fully explained or clarified through the use of updated diagnostic testing. Pursuant to the most recent remand, the Veteran underwent a VA peripheral nerves conditions examination in October 2021. Upon examination, the VA examiner noted that the Veteran's symptoms have remained the same since his last VA examination in March 2021 and determined that the Veteran has moderate incomplete paralysis of the right and left sciatic nerves. Remarkably, once again, an EMG study or any other significant diagnostic testing was not performed, as was specifically requested by the Board. The VA examiner did not provide a reason for why the requested testing was not performed. Compliance with Board remand directives is not discretionary and the Board errs as a matter of law when it fails to ensure compliance with a prior remand. See Stegall, 11 Vet. App. at 271. Therefore, because the Veteran was not afforded an EMG (or other diagnostic) study on remand, as has been repeatedly requested by the Board, the Board must remand the matters once again for compliance with its prior remand. On remand, the Veteran must be afforded a VA peripheral nerves conditions examination, which must include an EMG test and/or nerve conduction study to ascertain the exact nature and extent of his lower extremity radiculopathy. Moreover, the Board also requests that the VA examiner provide a retrospective medical opinion estimating the level of severity of the Veteran's lower extremity radiculopathy throughout the entire duration of the appeal (since January 2012). Accordingly, the matters are REMANDED for the following action: Schedule the Veteran for a VA peripheral nerve conditions examination with a VA physician (M.D.) of appropriate expertise to fully assess the current severity of his service-connected right and left lower extremity radiculopathy. The claims file, to include a copy of this REMAND, must be made available to and reviewed by the examiner. A complete history of symptoms must be elicited from the Veteran. In order to verify and/or evaluate the Veteran's current radicular complaints, electromyography (EMG) studies, nerve conduction studies (NCS), and/or any other significant diagnostic testing MUST BE CONDUCTED and all findings must be reported in detail. Thereafter, the VA examiner is asked to provide the following: (a) Report the extent of the symptoms of the Veteran's bilateral lower extremity radiculopathy in accordance with VA rating criteria. In this regard, the examiner must determine the location, nature, and level of severity of the disability. The specific nerve/s involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. (b) Then, as best as can be ascertained from the Veteran's historical reports on examination as well as from clinical records (including all prior VA examinations) and any other evidence of record, the examiner must provide a retrospective opinion assessing the extent of the severity of the Veteran's symptoms, to include the location, nature, and level of severity, of lower extremity radiculopathy throughout the entire duration of the appeal (since January 2012). A full and complete explanatory rationale must be provided for any opinions offered. If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must indicate whether this inability is due to a lack of knowledge among the medical community or based on a lack of procurable information. The Board reminds the examiner (and RO) that failure to comply with the examination directives outlined herein will render the examination report and any opinions offered inadequate and will result in further remand of the Veteran's claims. Compliance with Board remand directives is neither discretionary nor optional. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.