Citation Nr: 21028192 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 10-30 915 DATE: May 10, 2021 REMANDED 1. Entitlement to a rating of more than 10 percent for chronic lumbar syndrome of L4-5 is remanded. 2. Entitlement to an evaluation of more than 10 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran had active service from March 2001 to October 2008. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In the July 2010 substantive appeal, via a VA Form 9, the Veteran requested a hearing before the Board as to the issues on appeal. Per a May 2020 hearing letter response form, the Veteran asked to withdraw the hearing request. As such, the Board finds there is no hearing request pending at this time. The Board notes that the Veteran was initially granted service connection for chronic lumbar syndrome with left leg radiculopathy. During the pendency of the claim, the RO granted a separate evaluation for left lower extremity radiculopathy. Considering the Veteran's disagreement with the initial evaluation for service connection for chronic lumbar syndrome with left leg radiculopathy, the evaluation of more than 10 percent for left lower extremity radiculopathy has been added to the issues on appeal, as listed above. The instant matter was previously before the Board in October 2014, September 2014, and June 2020 where the matters on appeal were remanded for additional development. Unfortunately, there has not been substantial compliance with the Board's previous remand directive and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although an examination was provided in December 2020, as required in June 2020 remand, it is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 1. Entitlement to a rating of more than 10 percent for chronic lumbar syndrome of L4-5 is remanded. The Veteran contends that a higher rating is warranted for her service-connected chronic lumbar syndrome of L4-5. Review of the record reflects that the Veteran last received a VA back examination in December 2020. At that time, the examiner noted that the Veteran was not being examined immediately after repetitive use over time, and that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner further found that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time. However, the evidence of record does show that pain and weakness limit the Veteran's functional ability with repeated use over time, as the Veteran has complained of difficulty standing for extended periods of time, and the inability to continuously lift heavy boxes. See July 2010 Form 9; see also September 2011 Statement in Support of Claim. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. Also, where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In light of this, a remand is warranted. 2. Entitlement to an evaluation of more than 10 percent for left lower extremity radiculopathy is remanded. The claim for a higher rating for left lower extremity radiculopathy is being remanded for a new VA examination. The Veteran's most recent VA examination was in January 2016, at which time the examiner noted that the Veteran did not have any symptoms attributable to any peripheral nerve condition. The Board is unable to reconcile this opinion with the remaining medical evidence of record revealing years of complaints of numbness of the leg due to lower back pain. See July 2009, October 2008, June 2013 CAPRI. Moreover, the December 2020 lumbar spine examiner noted the Veteran's radicular pain in the lower extremity. A new examination is needed to reconcile this evidence. The matters are REMANDED for the following action: 1. Refer the claims file to the same VA examiner who conducted the December 2020 VA examination, or another VA examiner if that examiner is unavailable. Following a review of the record, the examiner must indicate whether, and to what extent, the Veteran experienced functional loss of the lumbar spine due to pain or any of the other symptoms with repeated use over time. In rendering an opinion regarding functional loss during repeated use over time, the examiner should consider the Veteran's lay statements, to include the Veteran's complaints of difficulty standing for extended periods of time, the inability to continuously lift heavy boxes, and the other evidence of record. 2. Afford the Veteran appropriate VA examination to determine the current severity of her left leg radiculopathy. Following a review of the record and any necessary testing, the examiner is to identify all current left leg radicular disorders. If no disorder related to the Veteran's subjective complaints is diagnosed, the examiner should address the Veteran's numerous complaints of left leg numbness due to low back pain. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.