Citation Nr: 21024487 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-28 806A DATE: April 22, 2021 REMANDED Entitlement to a separate compensable rating for radiculopathy of the left lower extremity (LLE) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from August 1978 to July 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A November 13, 2020 Board decision, among other things, remanded claims for service connection for hearing loss of the right ear and tinnitus along with entitlement to service connection for LLE radiculopathy. During remand status, a March 2, 2021 rating decision granted service connection for right ear hearing loss and tinnitus. As this represents a full grant of the benefits sought on appeal as to those matters, there is no remaining allegation of error of fact or law for appellate consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (a grant of service connection extinguishes appeals before the Board). Additionally, the Board observes that, on March 2, 2021, VA received Form 21-8940, Application for Increased Compensation Based on Unemployability. The TDIU claim is currently pending with the RO, undergoing appropriate development; it has not yet been adjudicated in the first instance by the originating agency. Because the pending claim before the Board for a separate compensable rating for LLE radiculopathy has been accepted by the Board in its prior remand as part-and-parcel of the previously adjudicated underlying claim for increase for low back disability, it follows that the claim for TDIU is part-and-parcel of the current appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 1. Entitlement to a separate compensable rating for LLE radiculopathy is remanded. To ensure that VA has met its duty to assist, remand is necessary as explained below. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In November 2020, the Board remanded the claim for a separate compensable rating for LLE radiculopathy to confirm the presence of such, noting that the February 2014 VA examination report contained contradictory information. Although a February 2021 VA peripheral nerve examination, by a physician’s assistant, was obtained, it is not adequate to decide the matter. It shows that the Veteran did not have a peripheral nerve condition or peripheral neuropathy although the Veteran reported severe symptoms of LLE intermittent pain, paresthesias and/or dysesthesias, and numbness. No electrodiagnostic studies were conducted. By history, the Veteran developed LLE numbness and tingling about 8 years earlier; and electrodiagnostic studies (“EMG/NCS in the community) roughly 10 years earlier. The Board finds that the February 2021 VA examination report is inadequate because it does not directly address whether the Veteran has LLE radiculopathy, which deals with damage to the nerves associated with the spine. Instead, it seemed to only address peripheral nerves disorders such as neuropathy, which involves damage to secondary nerves located at the peripheral of the body. Notably, the examination report does not show that straight leg raises or Lasegue’s tests were performed, or discuss how a diagnosis for radiculopathy is made. Therefore, remand for another examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate). 2. Entitlement to TDIU is remanded. To ensure due process of law, consideration of TDIU is deferred pending the development and adjudication in the first instance by the originating agency. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2021 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for LLE radiculopathy and symptoms involving his left lower extremity, to include numbness, tingling, and pain. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the whether the Veteran has a nerve disorder of the LLE to include LLE radiculopathy associated with service-connected low back disability. (a.) All necessary testing should be conducted to confirm or rule out the presence of LLE radiculopathy, and the clinician should expressly indicate the type of findings and/or testing required to confirm or rule out the presence of LLE radiculopathy. (b.) Obtain a complete medical history as to the nature and onset of the Veteran’s LLE symptoms (e.g. numbness, pain, tingling) along with treatment if any. (c.) Identify the nature and cause of the Veteran’s reported symptoms, or explain why this is not possible; (d.) Indicate whether there are objective findings for LLE abnormal pathology consistent with LLE radiculopathy or another nerve disorder (if yes, identify). The clinician is not required to accept the Veteran’s history of symptoms, onset, or treatment. However, s/he must provide a complete explanation for any history discounted or rejected. If an answer to any of the above matters cannot be made without resort to speculation, then the clinician must indicate 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 the examiner (does not have the knowledge or training). 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.