Citation Nr: 21075102 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-41 004A DATE: December 17, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine condition from April 30, 2012 to September 18, 2020, and in excess of 40 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy, sciatic nerve, from April 30, 2012 to December 18, 2019, and in excess of 20 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy, sciatic nerve, from April 30, 2012 to December 19, 2019, and in excess of 20 percent thereafter, is remanded. Entitlement to a compensable rating for right lower extremity radiculopathy, femoral nerve, from April 30, 2012 to December 19, 2019, and in excess of 20 percent thereafter, is remanded. Entitlement to a compensable rating for left lower extremity radiculopathy, femoral nerve, from April 30, 2012 to December 19, 2019, and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from February 1979 to August 1999. These issues were remanded by the Board of Veterans' Appeals (Board) in July 2020 and March 2021 for further development. The most recent remand in March 2021 specifically instructed the regional office (RO) to schedule a VA examination pertaining to the Veteran's claims. Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand, particularly as this matter has been the subject of prior remands, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 1. Entitlement to a rating in excess of 20 percent for a lumbar spine condition from April 30, 2012 to September 18, 2020, and in excess of 40 percent thereafter, is remanded. The Board finds that a new VA examination is warranted for the Veteran's claim. He contends that he is entitled to higher ratings for his lumbar spine condition. The Veteran underwent a VA examination in May 2021. However, the Board finds that the examination does not substantially comply with the Board's March 2021 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). First, the examiner noted there was evidence of pain during weight-bearing but did not provide the range of motion measurements from that testing as instructed by the March 2021 Board directives. See id.; see also Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Second, the May 2021 examiner failed to provide any retroactive opinion for the period from April 30, 2012, on any of the matter, as instructed by the Board in March 2021. Accordingly, remand for a new examination is necessary to adequately address the severity of the Veteran's lumbar spine condition throughout the appeal period. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy, sciatic nerve, from April 30, 2012 to December 18, 2019, and in excess of 20 percent thereafter, is remanded. 3. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy, sciatic nerve, from April 30, 2012 to December 19, 2019, and in excess of 20 percent thereafter, is remanded. 4. Entitlement to a compensable rating for right lower extremity radiculopathy, femoral nerve, from April 30, 2012 to December 19, 2019, and in excess of 20 percent thereafter, is remanded. 5. Entitlement to a compensable rating for left lower extremity radiculopathy, femoral nerve, from April 30, 2012 to December 19, 2019, and in excess of 20 percent thereafter, is remanded. The Veteran's bilateral lower extremity radiculopathies are associated with his lumbar spine condition; therefore, in the interest of due process, the Board finds it necessary to remand the ratings assigned for this aspect of the Veteran's service-connected disability due to the potential for development of additional relevant evidence in conjunction with the previously discussed spine examination. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file any relevant outstanding treatment records. 2. Schedule the Veteran for an examination to determine the severity of his lumbar spine condition, to include associated bilateral lower extremity radiculopathy. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's lumbar spine condition under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for the Veteran's lumbar spine on active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups and, if so, the examiner must estimate the range of motion during flares. If the examination does not take place during a flare, the examiner must glean information regarding the flares' severity, frequency, duration, and functional loss manifestations from the veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should, to the extent possible, and based on the available evidence, provide a retrospective opinion for the period from April 30, 2012, addressing prior range of motion of the lumbar spine, painful motion (and at what point it started), additional loss of motion after repetitions, and function loss due to pain-considering active and passive motion as well as weight-bearing and nonweight-bearing considerations-throughout the claims period. If the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination. The examiner should provide a retrospective opinion for the period from April 30, 2012, for the Veteran's bilateral lower extremity radiculopathies (sciatic nerve) and (femoral nerve) due to the lumbar spine condition. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. Lewis Kyle Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.