Citation Nr: 21016230 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 11-09 908 DATE: March 22, 2021 REMANDED Entitlement to a rating higher than 20 percent for thoracolumbar strain with disc bulging (“low back disability”) is remanded. Entitlement to a rating higher than 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to a compensable rating prior to July 26, 2018 and a rating higher than 10 percent thereafter, for radiculopathy of the left lower extremity is remanded. REASONS FOR REMAND In November 2019, the Board denied a rating in excess of 20 percent for low back disability. In September 2020 the Court granted the September 2020 Joint Motion for Partial Remand (JMPR) and vacated the November 2019 Board decision to the extent it denied a rating higher than 20 percent for low back disability. The case was returned to the Board for compliance with the terms of the JMPR. In the JMPR the parties agreed that the Board erred in denying the increased rating claim as it failed to assess whether the VA examinations of record were adequate for rating purposes. The parties also agreed that the examinations did not appear to be in compliance with the requirements under Correia v. McDonald and Sharp v. Shulkin. As such a remand is required in order to obtain an adequate examination for the current severity of the Veteran’s low back disability. The Board finds that, under the terms of the JMPR, to which both VA and the Veteran’s representative agreed, a new examination is necessary to decide the claim. Failure to fully comply with this requirement on remand will result in a violation of the Court’s holding in Stegall v. West, 11 Vet. App. 268 (1998). Also, of note, the RO failed to issue a supplemental statement of the case for the low back disability after the September 2020 VA examination was performed. The Board remanded the increased rating claims for radiculopathy of the bilateral lower extremities in November 2019 and in April 2020 to afford the Veteran a VA examination to assess the current level of severity of his radiculopathy. Although a VA examination of the bilateral lower extremity radiculopathy was performed in September 2020, as the low back disability claim is being remanded, the Board finds the increased rating claim for radiculopathy of the right lower extremity and the increased rating claim for radiculopathy of the left lower extremity to be inextricably intertwined with the increased rating claim for the low back disability and therefore must also be remanded. The matters are REMANDED for the following action: 1. The AOJ should schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his low back disability and radiculopathy of the bilateral lower extremities. The AOJ should ensure that the examiner provides all information required for rating purposes. The examiner is asked to perform an examination to assess the current level of severity of the Veteran’s low back disability and radiculopathy of the bilateral lower extremities. The Veteran’s electronic claims file, to include this remand should be made available to and reviewed by the examiner. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s low back disability alone and discuss the effect of his low back disability on any occupational functioning and activities of daily living. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or whether it is due to the examiner not having the knowledge or training. The examiner should also indicate whether the Veteran has any ankylosis of the lumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. Additionally, the examiner should specifically indicate whether the Veteran has IVDS of the lumbar spine-at any time during the period on appeal. The examiner should provide a complete rationale for any opinions provided. All opinions and conclusions must be supported by a complete rationale. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes, 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.