Citation Nr: 21015995 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 15-04 222 DATE: March 19, 2021 REMANDED Entitlement to an initial disability in excess of 10 percent for service-connected right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to November 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a January 2011 rating decision of the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA). In a November 2018 Board decision, the Board denied, in part, the issue above. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision, dated in July 2020, the Court vacated the issue and remanded the matter to the Board. Hence, this matter is once again before the Board for compliance with the terms of the Memorandum Decision. Of note, as noted above, subsequent to the November 2018 Board decision, the Veteran and his representative appealed the case to the Court in December 2019. The Veteran and his representative, however, then filed a claim with VA for the same issue in February 2020. Since the appeal was pending at the Court, the issuance of the March 2020 rating decision regarding an increased rating for the Veteran’s service-connected right lower extremity was in error. Consequently, the Veteran’s March 2012 request for a higher lever review in the Appeals Modernization Act review system of the March 2020 decision is also in error. As the Court has remanded the issue to the Board, the Board will proceed with adjudication of the Court’s July 2020 Memorandum Decision. Entitlement to an initial disability in excess of 10 percent for service-connected right lower extremity radiculopathy is remanded. The Court noted that the Board did not generally explain why the Veteran was not entitled to a higher rating for the assertions of leg weakness, unsteadiness, use of a cane, antalgic gait, inability to stand for more than 2 to 5 minutes, daily deep aching pain measured at 7 out of 10 points in terms of intensity, and intermittent 10 out of 10 lower spine pain for 6 days a week as noted in the September 2010 and August 2011 VA examination reports. The Court also indicated that neither the Board nor the medical examiner addressed whether the Veteran’s symptoms of lower extremity radiculopathy were separate and distinct or whether particular symptoms were attributable to a specific nerve. The Court noted that on remand, the Board should ensure that a medical expert address these questions. Based on the foregoing, and to comply with the Memorandum Decision, further action in connection with the underlying increased rating claim concerning the Veteran’s radiculopathy of his right lower extremity is warranted. A remand for a new examination and opinion are necessary. The matters are REMANDED for the following action: Schedule the Veteran for the appropriate VA examination to assess the current severity of his service-connected right lower extremity radiculopathy. The entire claims file must be reviewed by the examiner. All indicated tests should be performed. The examiner should describe any impairment of function of the right lower extremity due to the radiculopathy. If the effects are only sensory in nature, the examiner should so state. The specific nerve(s) affected should be identified and the examiner should characterize the radiculopathy as mild, moderate, moderately severe, or severe with marked muscular atrophy, or indicate whether there is complete paralysis. In rendering the opinion, the examiner must consider the Veteran’s lay statements regarding his claimed condition. The Board recognizes the practical difficulties of scheduling an examination in view of the COVID-19 epidemic, and requests flexibility and understanding in affording the Veteran an opportunity to report for an examination. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans, 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.