Citation Nr: 21026812 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-28 708A DATE: May 4, 2021 REMANDED Entitlement to service connection for peripheral sensory neuropathy of the bilateral lower extremity, to include as secondary to degenerative joint disease of the thoracolumbar spine, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from November 1990 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In July 2018 and October 2020, the Board remanded the issue of entitlement to service connection for peripheral sensory neuropathy of the bilateral lower extremities for further evidentiary development. The issue is again before the Board. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. Pursuant to the October 2020 Board remand, a VA peripheral nerves examination was obtained in December 2020. An addendum VA medical opinion was also associated with the Veteran's claims file in January 2021. The Board directed the VA examiner to identify all relevant diagnoses by considering those already of record, as well as to address whether the Veteran has a diagnosis of radiculopathy of the bilateral lower extremities. The examiner was then to opine as to whether any disability is at least as likely as not caused or aggravated by the Veteran's service-connected thoracolumbar spine disability. The examination report referenced instances of the Veteran's reports of radicular symptoms to his treating clinicians. In rendering the negative nexus opinion, however, the VA examiner stated that there is a lack of evidence supporting a chronic radiculopathy condition. If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The claimed radiculopathy need not be chronic in order to establish a current disability for purposes of service connection on a secondary basis. Rather, the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability is filed or during the pendency of that claim, even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, another VA examination is warranted to determine the nature and etiology of the Veteran's claimed peripheral sensory neuropathy. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination; the claims folder must be reviewed in conjunction with such. The examiner must identify any current peripheral neuropathy disorders, to include radiculopathy of the bilateral lower extremities. For each diagnosed disability, the examiner must opine as to whether such is at least as likely as not (50 percent probability or greater) caused or aggravated by service, to include as due to service in the Southwest Asia theater of operations, and to include as due to service-connected degenerative joint disease of the thoracolumbar spine. If no radiculopathy disability is present at the time of examination, the examiner should still proceed to provide an opinion on the etiology of the documented complaints of radicular symptoms. A full and complete rationale is required for all opinions expressed. 2. Then, readjudicate the remanded issue. If the benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.