Citation Nr: 21007136 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-38 091 DATE: February 8, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for neurological radiculopathy of the right lower extremity is remanded. Entitlement to a disability rating in excess of 10 percent for neurological radiculopathy of the left lower extremity is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1976 to June 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of April 2013 and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. By way of procedural background, the RO initially granted entitlement to service connection for lumbar strain with mild radiculopathy of the bilateral lower extremities in a February 2010 rating decision, which rated lumbar strain alongside radiculopathy as a single disability beginning November 25, 2009. Subsequently, in an April 2013 rating decision, the RO granted a separate 10 percent ratings for radiculopathy in the left and right lower extremities from November 25, 2009, based on the Veteran’s subjective complaints. In a May 2013 rating decision, however, the RO found that the April 2013 rating decision had contained clear and unmistakable error (CUE) because the 10 percent rating should have been assigned from October 30, 2012. The Veteran filed a timely notice of disagreement after the May 2013 rating decision was issued. Subsequently, in a September 2014 rating decision, the RO found that the May 2013 rating decision itself contained CUE, but not the April 2013 rating decision, and revised the May 2013 rating decision so that the 10 percent disability ratings were effective from November 25, 2009. In a statement of the case issued on the same day, the RO found that ratings in excess of 10 percent were not warranted. Thereafter, the Veteran perfected a substantive appeal to the Board. In June 2018, the Veteran testified at a hearing before the undersigned. A transcript of his testimony has been associated with the claims file. Subsequently, the Board remanded the Veteran’s claims for increased disability ratings for radiculopathy of the bilateral lower extremities and for TDIU in November 2018 and August 2020 decisions. In its most recent decision, the Board instructed the RO to contact the Veteran to obtain additional medical records in connection with treatment of his radiculopathy. In October 2020, the RO issued a supplemental statement of the case. The matters now return to the Board. 1. Radiculopathy In the Board’s August 2020 remand decision, it found that additional remand was warranted before it could properly adjudicate the Veteran’s increased rating claims. More specifically, the Veteran had undergone a VA examination in October 2019 to assess the severity of his radiculopathy. The October 2019 VA examiner noted that he had moderate paresthesias or dysesthesias and moderate numbness of his bilateral lower extremities. However, the October 2019 VA examiner also noted that the Veteran was diabetic and that his peripheral loss of sensation in his lower extremities could be due to non-service-connected diabetes. The examiner also noted that he reportedly was scheduled for an electromyography, or EMG, test that could determine the etiology of his peripheral nerve disability. As such, the Board instructed the RO to contact the Veteran to obtain any private treatment records with respect to his lower extremities, as well as any outstanding VA treatment records, including EMG studies that were performed after the October 2019 VA examination. A remand by the Board confers a right to compliance with the directives of that remand. Stegall v. West, 11 Vet. App. 268 (1998). Here, however, the Board finds that there has not been substantial compliance with the Board’s remand directives. To that end, the Board acknowledges that the RO sent the Veteran a letter in September 2020 requesting private medical records in connection with the treatment of his bilateral lower extremities, which the Veteran did not respond to. However, it does not appear that the RO requested or associated with the claims file outstanding VA treatment records. As such, the RO did not substantially comply with the Board’s remand instructions. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board also notes that as part of its duties to assist veterans who have filed claims for benefits, VA may be required to provide a medical examination or opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). If an examination report is inadequate or does not contain sufficient detail, the Board is required to return the report in a remand. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Here, the October 2019 VA examiner’s statements regarding whether his symptoms were related to diabetes or radiculopathy were equivocal at best. As hinted at by the October 2019 VA examiner, more definitive evidence is needed with respect to whether the Veteran has diabetic peripheral neuropathy and, if so, whether his neurological symptoms in his bilateral lower extremities are manifestations of his service-connected radiculopathy or non-service-connected diabetic peripheral neuropathy. If the symptomatology attributable to non-service-connected peripheral neuropathy cannot be differentiated from the symptomatology attributable to radiculopathy in the bilateral lower extremities, the symptoms should be attributed to the service-connected radiculopathy. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). If the RO is unable to obtain records from an EMG study conducted after his October 2019 VA examination occurred, or if the records of that EMG study are inconclusive, the RO should schedule the Veteran for a new VA examination. All indicated studies, including an EMG, should be performed in order to determine if it is possible to distinguish between the effects of any non-service-connected disorders and his service-connected radiculopathy. 2. TDIU The Veteran’s claims for increased ratings for radiculopathy in the bilateral lower extremities have been remanded herein. Since the Board is remanding the Veteran’s claims in the present decision, any potential future assignment of disability ratings and effective dates for these awards will impact the adjudication of the TDIU claim. As such, the issues are inextricably intertwined, and consideration of the TDIU claim must be deferred until after a decision on the increased rating claims has been rendered. See Harris v. Derwinksi, 1 Vet. App. 180 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Accordingly, the matters are REMANDED for the following action: 1. After obtaining proper authorization, obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records. More specifically, obtain records in connection with an EMG study performed at some point after the Veteran’s October 2019 VA peripheral nerve conditions examination. With respect to private treatment records, the RO must make at least two (2) attempts to obtain records from any identified sources. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should be clearly documented in the claims file. The Veteran must be notified of the attempts made and allowed the opportunity to provide such records. The Veteran is advised that it is ultimately his responsibility to ensure that private treatment records are received. 2. If records of the EMG study are not available, or if the records of the EMG study do not indicate whether it is possible to distinguish between symptoms of radiculopathy and symptoms of non-service-connected peripheral neuropathy, obtain a new examination to assess the severity of the Veteran’s service-connected radiculopathy of the bilateral lower extremities. The claims file must be made available to the examiner for review prior to the examination, and the examiner must acknowledge such review in the examination report. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to obtain a detailed history of relevant symptoms from the Veteran. All indicated studies should be performed, including an EMG. The examiner is then asked to evaluate the extent and severity of the Veteran’s bilateral lower extremity radiculopathy. In doing so, the examiner is asked to clarify the degree to which the symptoms and associated functional impairment stemming from the Veteran’s service-connected radiculopathy can be differentiated from related non-service-connected conditions, if any, including diabetic peripheral neuropathy. If it is not possible to distinguish between the effects of the service-connected radiculopathy and the effects of any related non-service-connected disorders, the reasonable doubt doctrine dictates that all symptoms should be attributed to the Veteran’s service-connected radiculopathy. A complete rationale for these opinions must be provided. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice. 3. After ensuring compliance with the items above, readjudicate the Veteran’s claims, as well as his claim for TDIU. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.