Citation Nr: 21030123 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-19 016A DATE: May 17, 2021 REMANDED Entitlement to an initial disability rating in excess of 40 percent for service-connected lumbar strain, to include consideration of entitlement to a separate disability rating for radiculopathy associated with lumbar strain, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1973 to May 1993. By way of background, this matter was previously before the Board of Veterans' Appeals (Board) in April 2020, at which time the Board found that the evidentiary record supported the assignment of an initial disability rating of 40 percent, but no higher, for the Veteran's service-connected lumbar strain. See Board decision dated April 13, 2020. The Veteran appealed the denial of entitlement to a disability rating in excess of 40 percent for his lumbar strain to the United States Court of Appeals for Veterans Claims (Court), which granted a Joint Motion for Partial Remand (JMPR) vacating the Board's decision on the grounds that the Board erred by not providing an adequate statement of reasons and bases for its finding that the Veteran is not entitled to a separate disability rating for radiculopathy associated with his service-connected lumbar strain. The matter has now been returned to the Board. For the reasons below, the Board finds that a remand is warranted before the appeal can be properly adjudicated on its merits. Entitlement to an initial disability rating in excess of 40 percent for service-connected lumbar strain, to include consideration of entitlement to a separate disability rating for radiculopathy associated with lumbar strain, is remanded. The Veteran's service-connected lumbar strain is rated under Diagnostic Code 5237, pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. Significantly, Note (1) of the General Rating Formula permits the assignment of an additional, separate disability rating for objective neurological abnormalities (such as radiculopathy) associated with the service-connected disability being evaluated. In its JMPR, the parties agreed that the August 2016 and July 2019 VA examinations, on which the Board relied in denying entitlement to a higher disability rating, to be inadequate. Specifically, the parties observed that neither examination indicated what, if any, neurological testing had been conducted to support its determination that the Veteran's lumbar strain did not result in radiculopathy. Notably, such a determination is contradicted elsewhere in the record, chiefly by medical treatment records spanning several years and by the Veteran's own assertions regarding radiculopathy symptoms. In light of the foregoing, the Board finds that a remand is required in order to afford the Veteran a new VA back examination adequately documenting the extent of his lumbar strain, including, after appropriate testing, the presence or absence of radiculopathy associated with the disability. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to ascertain the current severity of his service-connected lumbar strain, including manifestations of the disability (such as radiculopathy). The clinician is asked to review all pertinent records associated with the claims file, including the Veteran's medical treatment records, lay statements, and a copy of this Remand. Upon examination, the clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the appropriate rating criteria. It is specifically requested that the clinician conduct any tests or studies necessary to determine the existence of objective neurologic abnormalities associated with the Veteran's lumbar spine disability namely, radiculopathy. The clinician's attention is directed to the medical treatment records documenting radiculopathy, as well as to the Veteran's lay statements reporting symptoms of radiculopathy (e.g., the "sharp pain" described by the Veteran in the July 2019 VA examination as radiating into his arms and legs). The Veteran is competent to report observable symptomatology. If there is any medical or evidentiary reason to doubt the lay statements of the Veteran, this should be clearly stated in the evaluation and supported by the evidence of record. (Continued on the next page) A clear rationale for all opinions expressed would be helpful; and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.