Citation Nr: 21073354 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-25 937 DATE: December 8, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for left lower extremity radiculopathy (sciatic nerve) is remanded. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy (sciatic nerve) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to January 1971. These matters come before the Board of Veterans' Appeal (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board and were remanded for additional development in March 2021. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2019. A transcript of the hearing has been associated with the claims file. The Veteran contends that his service-connected radiculopathy of the sciatic nerves, in both left and right lower extremities, warrants a disability rating higher than 20 percent under 38 C.F.R. § 4.124a, DC 8520. The Board regrets the delay associated with this remand, especially considering that these matters were the subject of two previous remands. However, another remand is necessary to ensure that the Veteran is afforded full compliance with the statutory duty to assist. In June 2019, the Board, in part, remanded the Veteran's claim to schedule him for a new exanimation to assess the severity of his radiculopathy. The requested examination took place in December 2019. In the March 2021 remand, the Board observed that the most recent examination report indicated that the Veteran took medication for his radiculopathy, but it was unclear whether the examiner discounted the ameliorative effects of the Veteran's medication, if any, when evaluating his nerve symptoms. As a result, the Board requested that an examiner render a new opinion which states what the severity of the sciatic nerve impairment might be after discounting the ameliorative effects of any medication taken to treat the nerve symptoms, and to report all symptoms and impairment attributable to the sciatic nerve. The Board also informed the examiner that if he or she is unable to distinguish the symptoms and impairment attributable to the sciatic and femoral nerves, he or she must explain why this is so. A new opinion was obtained in June 2021. Unfortunately, there has not been substantial compliance with the Board's previous remand directive regarding these issues. With respect to the ameliorative effects of medication, the June 2021 examiner appears to misunderstand the Board's question. The Board is interested in the level of functional impairment that would exist if the Veteran was not taking medication. Instead, the examiner appears to have addressed whether repeated use of medication (over time) would have the same ameliorative effect or if more medication would be needed to achieve the same result. Regarding the neurologic symptoms and impairment attributable to the sciatic nerve or to the femoral nerve, the June 2021 examiner's response is unsupported by any analysis and lacking compliance with remand directives. Remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). In accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. These matters are REMANDED for the following action: 1. Schedule the Veteran for a VA nerve examination to determine the severity of the service-connected bilateral lower extremity radiculopathy involving the sciatic nerve. The claims file should be made available to the examiner for review, and any diagnostic testing deemed necessary should be performed in this regard. A) The examiner should report all symptoms attributable to the sciatic nerve and should specifically note whether there are any organic changes characterized by loss of reflexes, muscle atrophy, sensory disturbances, or constant pain. B) The examiner should also state what the severity of the sciatic nerve might be when discounting the ameliorative effects of any medication taken to treat the nerve symptoms. If this is not feasible, the examiner MUST provide a detailed explanation and rationale for why this could not be accomplished. C) The examiner should also attempt to distinguish the symptoms and impairment attributable to the sciatic and femoral nerves. 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). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Oquendo, L., 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.