Citation Nr: 21023589 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 04-20 688 DATE: April 21, 2021 REMANDED Entitlement to an initial evaluation in excess of 20 percent for right leg neurologic manifestations of a low back disability is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from August 1985 to August 1987. Prior History This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision which implemented a November 2010 Board decision granting a separate rating for neurologic manifestations of a service-connected lumbar spine disability and assigning an initial 10 percent rating. An interim September 2014 rating decision increased the rating from 10 to 20 percent. March 2015 and November 2018 Board decisions remanded this matter for issuance of a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 239-41 (1999). In a March 2019 SOC, VA reduced the rating for right leg neurologic manifestations to 10 percent, effective March 1, 2019. A May 2019 Board decision restored the 20 percent rating for right leg neurologic manifestations from March 1, 2019 and denied a rating in excess of 20 percent. The Veteran appealed the portion of the May 2019 Board decision which denied a rating in excess of 20 percent to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a May 2020 Joint Motion for Partial Remand (JMPR) by the parties on the basis that the Board failed to provide an adequate statement of reasons and bases for its decision, although the JMPR did not disturb the Board’s decision to the extent that it restored the 20 percent rating from March 1, 2019). A May 2020 CAVC Order remanded the claim pursuant to the terms of the JMPR. In October 2020, the Board remanded the claim to provide the Veteran a new VA examination and to obtain any outstanding private and VA treatment records. See Board Remand dated October 20, 2020. The Veteran underwent a VA examination in February 2021 and the examination report and associated medical opinion is of record and has been reviewed. The Board finds there has not been substantial compliance with its October 2020 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). February 2021 VA Examination Although the Board regrets the additional delay, a remand is again necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38C.F.R. § 3.159(c) (2020). Once VA undertakes the effort to provide an examination or medical opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, As noted above, a Board remand confers on the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). In its October 2020 remand, the Board directed that a VA examiner, in part, to determine whether the Veteran has right foot drop as a manifestation of his service-connected right leg neurologic disorder, and, if found, to identify to the extent possible when right foot drop first manifested. The Board’s October 2020 remand anticipated additional testing, specifically directing the examiner to complete all “indicated tests and studies[.]” See Board Remand dated October 20, 2020 at pg. 3. In February 2021, a VA examiner characterized the Veteran’s right lower extremity sciatic nerve impairment as “mild” incomplete paralysis. In contrast, however, the examiner opined that “there is no clinical means by which this physician can make any assessment” regarding the severity of the Veteran’s right lower extremity radiculopathy, and recommended “further evaluation, including current EMG/NCS [studies] would likely be of benefit.” See VA medical opinion dated February 12, 2021. Instead of obtaining EMG/NCS studies to complete the evaluation, the VA examiner merely recommended that such studies be done. Id. This is not in accordance with the Board’s October 2020 remand, and renders the February 2021 VA examination incomplete. See Stegall, supra. Additionally, the examiner was instructed to reconcile, to the extent possible, disparate clinical notations regarding findings of right foot drop reflected in VA examinations dated June 2012, March 2009, and April 2015. While the examiner discussed the April 2015 VA examination findings at length, the examiner merely referenced the March 2009 and June 2012 examinations, without discussing the findings reflected therein. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). The Board notes that a March 2020 EMG study of the Veteran’s right lower extremity by a private physician was associated with the electronic claims file one day prior to the February 2021 VA examination. The Board recognizes the possibility that the EMG study may not have been accessible to the VA examiner just one day after the private study was submitted. Nevertheless, absent review and consideration of the March 2020 private EMG study, the February 2021 VA examiner’s review is incomplete. See Nieves-Rodriguez, supra. Accordingly, the claim is remanded to provide the Veteran with a new VA examination to assess the severity of his right leg neurologic disorder, to include diagnostic studies. See Stegall, supra; Barr, supra. Lastly, given the conflicting medical evidence, as well as the previously indicated concern that the Veteran’s current presentation may include exaggeration of symptoms, including as noted in the February 2021 VA examination report, the Veteran is cautioned to cooperate fully and to the best of his ability to avoid any confusion over the results. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA and non-VA health care providers, providing the Veteran with VA Form 21-4142 for this purpose. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Ensure that additional evidence associated with the Veteran’s electronic claims file is available for review in VBMS. 4. When the development specified above is completed, arrange for a neurological examination of the Veteran by the same VA examiner who conducted the February 2021 VA peripheral nerves conditions examination, if available, to ascertain the current severity of his right lower extremity neurologic disability. The entire claims folder must be reviewed by the examiner in conjunction with the examination. The examiner should describe all findings in terms of 38 C.F.R. § 4.124a, Code 8720 criteria (a copy of which should be provided to the examiner). All indicated tests and studies, including EMG studies, should be completed, and all clinical findings should be reported in detail. The examiner must indicate whether the Veteran's right lower extremity neurologic disability is mild, moderate, moderately severe, severe with marked muscular atrophy, or whether he has complete paralysis (the foot dangles and drops), citing to the clinical findings on examination and noted in therapy, and treatment records and consultation/evaluation reports received that support such conclusion. To the extent possible, reconcile (express agreement or disagreement, with rationale) the disparate clinical notations in the record finding right foot drop (as on June 2012 VA examination) with notations of no objective evidence of right foot drop (as on March 2009 and April 2015 VA examinations). The examiner should note that the June 2012 VA examination has a VBMS receipt date of 08/02/2012). If right foot drop (as a neurological manifestation of a low back disability) is found, (to the extent possible) identify when such first manifested (cite to the supporting clinical finding). If it cannot be determined whether the Veteran’s right lower extremity disability is or was manifested by complete foot drop, explain in detail why such cannot be determined: E.g. Was appropriate testing was not done (if so, is such testing feasibly possible, and if not explain why not)? Was there testing conducted that cannot be relied upon (if so, was the testing incomplete or improperly done, and may this be corrected. And if so, how)? Was there exaggeration of symptoms, malingering, or a failure to cooperate? etc. All opinions must include rationale that cites to supporting factual data and medical principles. 5. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Farrell 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.