Citation Nr: 21030382 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 18-31 056 DATE: May 18, 2021 ORDER Entitlement to an effective date earlier than September 7, 2006 for the award of service connection for degenerative arthritis of the lumbar spine with spinal stenosis is denied. Entitlement to an initial 40 percent rating for sciatica of the left lower extremity is granted. Entitlement to an initial 40 percent rating for sciatica of the right lower extremity is granted. REMANDED Entitlement to an initial rating in excess of 40 percent for sciatica of the left lower extremity is remanded. Entitlement to an initial rating in excess of 40 percent for sciatica of the right lower extremity is remanded. FINDINGS OF FACT 1. The award of service connection for the Veteran's degenerative arthritis of the lumbar spine with spinal stenosis was not based all or in part on newly added service records. 2. The Veteran's sciatica of the left lower extremity has resulted in moderately severe incomplete paralysis of the sciatic nerve. 3. The Veteran's sciatica of the right lower extremity has resulted in moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 7, 2006 for the award of service connection for degenerative arthritis of the lumbar spine with spinal stenosis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2020). 2. The criteria for an initial 40 percent rating for sciatica of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial 40 percent rating for sciatica of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to April 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2018 when it was remanded for further development. In July 2019, the Board denied the Veteran's claim for an effective date earlier than September 7, 2006 for the award of service connection a back condition. The Board also increased the Veteran's disability rating for bilateral lower extremity sciatica to 20 percent, effective March 12, 2009 (thereby denying a rating in excess of 10 percent for the period prior to March 12, 2009 and a rating in excess of 20 percent after March 12, 2009). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran's representative and the VA General Counsel. Effective Date Entitlement to an effective date earlier than September 7, 2006 for the award of service connection for degenerative arthritis of the lumbar spine with spinal stenosis is denied. The Veteran and his attorney contend that the Veteran is entitled to an effective date earlier than September 7, 2006 for the award of service connection for degenerative arthritis of the lumbar spine with spinal stenosis under the provisions of 38 C.F.R. § 3.156(c). Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. An application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. See Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Sears v. Principi, 16 Vet. App. 244, 248 (2002). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Once a rating decision is final, only a request for a revision premised on clear and unmistakable error (CUE) can result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("absent a showing of clear and unmistakable error, [the Veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("when a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."); Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). Under 38 C.F.R. § 3.156(c)(1), if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. The provisions of paragraph (c)(1) do not apply to records that VA could not have obtained when it decided the claim because the records did not exist at the time of the decision or because the claimant failed to provide sufficient information for VA to identify and obtain the service department records from an official source. 38 C.F.R. § 3.156(c)(2). Section 3.156(c)(3) provides that if newly received, relevant service department records form all or part of the basis for the award of a benefit, then the effective date for such award is the date entitlement arose or the date VA received the previously decided claim, whichever is later. See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014) (noting that essentially, the purpose of 38 C.F.R. § 3.156(c) is "to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of [the] earlier claim"); see also George v. Shulkin, 29 Vet. App. 199 (2018). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Regulations defining a "claim" were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. In this case, however, the applicable regulations are those prior to the revision, as this claim was pending prior to March 24, 2015. As such, the Board will apply the regulations effective prior to March 24, 2015 regarding defining a claim. Under these regulations, a formal claim is one that has been filed in the form prescribed by VA. 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written and must identify the benefit being sought. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). In this case, on May 17, 1979, VA received the Veteran's original claim for service connection for a back condition. An October 1988 rating decision denied the Veteran's claim on the basis that there was no mention of a back problem in the Veteran's service treatment records. The Veteran did not file a notice of disagreement with the decision or submit new and material evidence within one year of the rating decision. In March 1994, VA received the Veteran's petition to reopen the claim for service connection for a back condition. A July 1994 rating decision denied the Veteran's claim after finding new and material evidence had not been received to reopen the Veteran's claim for service connection for a back condition. The RO acknowledged that new service treatment records were added to the file and showed a low back strain in-service but found the new records provided no new factual basis for a grant of service connection. The Veteran did not file a notice of disagreement with the decision or submit new and material evidence within one year of the rating decision. In December 2003, the Veteran filed another petition to reopen his claim. In a July 2004 rating decision, the RO declined to reopen the Veteran's claim after finding the Veteran had not submitted new and material evidence. The Veteran did not file a notice of disagreement with the decision or submit new and material evidence within one year of the rating decision. On September 7, 2006, VA received the Veteran's petition to reopen his claim for service connection for a back condition. The claim was denied in a March 2007 rating decision as the RO found the Veteran had not submitted new and material evidence to reopen his claim. The Veteran appealed his claim to the Board, and in an October 2012 decision, the Board found new and material evidence had been received to reopen the Veteran's claim. After reopening the claim, the Board remanded the issue of entitlement to service connection for further development. In September 2014 and November 2015 decisions, the Board remanded the Veteran's claim again for further development. In an August 2016 rating decision, the RO granted service connection for degenerative arthritis of the lumbar spine with spinal stenosis and assigned a 20 percent rating, effective September 7, 2006. After review of the evidence of record, the Board finds a preponderance of the evidence is against finding an effective date for the award of service connection for degenerative arthritis of the lumbar spine with spinal stenosis is warranted. The Board finds the Veteran's request to reopen his claim received by VA on September 7, 2006 constitutes the date of the claim. The Board also finds the October 1988, July 1994, and July 2004 rating decisions are final and, because the decisions are final, the claim by which the Veteran was granted service connection was a claim to readjudicate a previously denied claim. As the Veteran's September 2006 claim was filed more than one year after the last final July 2004 rating decision, the effective date can be no earlier than the date of receipt of the claim, unless an exception applies. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2), (r) (effective date for reopened claims, including based on new and material evidence, will be the date of receipt of new claim or date entitlement arose, whichever is later). The Board concludes an exception, including the provisions of 38 C.F.R. § 3.156(c), do not apply in this case as the evidence of record does not reflect the award of service connection was based all or in part on the newly added service treatment records. The Board acknowledges that new service treatment records documenting treatment for low back pain were added to the Veteran's file in March 1994, which is after the October 1988 rating decision that denied the Veteran's claim on the basis that there was no evidence of in-service back problems. However, the Board finds the record shows these new service treatment records were considered in subsequent rating decisions, including for example, the July 1994 rating decision which noted that new service medical records showed an in-service low back strain but continued denial of the Veteran's claim and the March 2007 rating decision which listed the service treatment records as evidence and continued denial of the Veteran's claim. In addition, the Board notes that in a March 2012 supplemental statement of the case, the RO explained that the Veteran needed to provide evidence showing his claimed back condition was linked or related to his service. When the Veteran's claim was granted in the August 2016 rating decision, the RO explained that service connection was granted as the evidence showed a nexus between his current back disability and his in-service motor vehicle accident. Thus, it is clear the Veteran's claim was granted after a positive nexus opinion was provided, not because of the additional service treatment records added to the file in March 1994. As the record reflects the Veteran's claim was not granted based all or in part on the newly added service treatment records, an effective date earlier than September 7, 2006 for the award of service connection for degenerative arthritis of the lumbar spine with spinal stenosis under the exception provided in 38 C.F.R. § 3.156(c) is not warranted. The Board also notes that the Veteran has not alleged CUE with the final October 1988, July 1994, or July 2004 rating decisions. Thus, an effective date of September 7, 2006 is the appropriate effective date for the grant of service connection for the Veteran's degenerative arthritis of the lumbar spine with spinal stenosis. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400. Consequently, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date for the award of service connection for degenerative arthritis of the lumbar spine with spinal stenosis. Thus, the claim for entitlement to an effective date earlier than September 7, 2006 for the award of service connection for degenerative arthritis of the lumbar spine with spinal stenosis is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating 1. Entitlement to an initial 40 percent rating for sciatica of the left lower extremity is granted. 2. Entitlement to an initial 40 percent rating for sciatica of the right lower extremity is granted. The Veteran and his attorney contend that the Veteran is entitled to a rating in excess of 10 percent for the period prior to March 12, 2009 and a rating in excess of 20 percent for the period thereafter for his service-connected bilateral lower extremity sciatica. Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's bilateral lower extremity sciatica has been rated at 10 percent for the period prior to March 12, 2009 and 20 percent for the period thereafter under Diagnostic Code (DC) 8720, for neuralgia of the sciatic nerve. VA regulations provide that neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis (see nerve involved for diagnostic code number and rating). Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. See 38 C.F.R. § 4.124. The scale for paralysis of the sciatic nerve provides that a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is warranted for moderately severe incomplete paralysis of the sciatic nerve; and a 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve. Complete paralysis of the sciatic nerve is characterized by foot dangles and drops, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. In rating diseases of the peripheral nerves, the term 'incomplete paralysis' indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. The rating schedule does not define the terms "mild," "moderate," or "severe," as used in this diagnostic code to describe the degree of incomplete paralysis. Instead, adjudicators must evaluate all of the evidence and render a decision that is "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In addition, where the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id.; see Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). It is permissible to switch DCs to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the DC associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Turning to the evidence in this case, a May 2007 medical record furnished by the Social Security Administration includes a summary report of an orthopedic consult provided by Dr. F.W. In the report, Dr. F.W. indicated that the Veteran had normal strength, normal deep tendon reflexes, and abnormal sensation to light touch in the lower extremities. Dr. F.W. also indicated that there was only diminished sensation of the left lateral thigh with sciatic stretch tests and diagnosed left lower extremity sensory sciatica. VA treatment records also provide information regarding the Veteran's symptoms. For example, a November 2006 record indicates that the Veteran reported occasionally experiencing pain that radiated down his left leg, a history of falls, and that his legs gave out. In August 2007, the Veteran complained of back pain and associated tingling, numbness, and shooting pains in his legs bilaterally. The Veteran reported that he could walk only about a block before he would have to stop because of the pain in his lower back and lower extremities. A neurologic examination revealed the Veteran's strength was 4/5 in the bilateral lower extremities and straight leg pain with the left lower extremity. In November 2007, the Veteran underwent a neurology consult after presenting for a history of episodes of severe sharp intermittent pain in the tailbone and associated severe weakness and tingling in the legs. The Veteran reported experiencing "episodes" daily and that the episodes were brought on by movement. He also reported severe weakness in his lower extremity that caused him to fall and prevented him from standing after the fall. He reported walking with a cane since 2002 and that he began using the cane after several falls. Another record from November 2007 reflects that the Veteran reported lower back pain with radiation into the lower extremities. He reported numbness in his left foot, tingling sensations that radiate down his legs, and shooting sensations in the back of his legs and denied any weakness. He rated his pain at the time 5/10 but noted that it could increase to 8 or 9/10. Physical examination revealed normal motor strength and deep tendon reflexes, decreased sensation in the left plantar aspect of the foot, and possible radiculopathy. In March 2008, an EMG was performed and was normal. There was no evidence suggestive of radiculopathy. An additional record from March 2008 indicates the Veteran reported a history of severe weakness and tingling in his legs. A straight leg raise test was positive bilaterally for low back pain with radiation to the knees. The Veteran denied numbness. In September 2008, the Veteran reported worsening ambulation. It was noted that his strength was 5/5 in his bilateral lower extremities, however, on attempt to resist with hips up, he experienced shooting pain down is legs. A March 2009 note from a PT consult noted bilateral numbness and tingling down the Veteran's entire legs. It was noted that the Veteran was unable to walk more than a few minutes due to pain. Additionally, the Veteran reported increased lower extremity pain. The clinician attempted to relieve the Veteran's pain by laying him in a prone; however, after a few minutes in the prone, the Veteran complained of intensifying pain in his left lower extremity. The clinician noted that the Veteran was silently sobbing due to pain after rolling from the prone to supine and then to a seated position. In January 2013, the Veteran underwent an additional VA examination. Regarding his sciatica of the bilateral lower extremities, it was noted that the Veteran did not have any radicular pain or symptoms as a sensory examination was normal. However, a straight leg test was positive and suggestive of radiculopathy of the bilateral lower extremities. The examiner indicated that the Veteran reported occasional use of a walker. Additional VA treatment records reflect that the Veteran reported pain that sometimes radiates to his bilateral lower extremities with tingling and numbness. In December 2012, the Veteran underwent an EMG. However, it was noted that the EMG was incomplete as the Veteran was unable to tolerate the pain in order to complete the EMG. Lumbar radiculopathy could not be ruled out, but the clinician indicated examination of the Veteran was positive for moderate-severe bilateral lower extremity weakness and severe restriction of mobility and range of motion. It was also noted that the Veteran reported radiating pain down his bilateral lower extremities with weakness. His sensation to light touch/pinprick was impaired. In October 2013, the Veteran reported radicular pain down his legs. He also reported that he was able to walk short distances with his cane and that he has to use a walker for longer distances. A May 2014 record reflects that the Veteran reported that his sciatic pain had worsened. He rated the pain in his lower extremities 6/10. It was noted that the Veteran underwent a nerve conduction study and that it was negative. EMG testing was too painful; however, physical examination revealed intact sensory to light touch and a negative straight leg test. In September 2014, during a neurology follow-up appointment, the Veteran rated his pain at 4/10 but indicated that the pain can easily increase to 8/10 with moderate exercise. It was noted that a sensory examination was normal. In April 2016, the Veteran reported radiating pain and indicated that the highest level of pain is 10/10. He also reported tingling in both legs, sharp pain in his feet, and weakness. It was noted that he used a Lidocaine patch, TENS unit, and heating pad for treatment. He previously tried physical therapy but stopped because it increased his pain. In July 2016, the Veteran reported numbness, tingling, and weakness. His pain was rated at 10/10 when at its worst and 5-6/10 on average. Strength testing was 4/5 in the lower extremities. Sensation was intact and deep tendon reflexes were 2+. In May 2016, the Veteran underwent a VA examination. Regarding his sciatica, the examiner noted that the Veteran experienced decreased sensation to light touch in his bilateral feet/toes but had normal sensation in his upper anterior thigh, thigh/knee, and lower leg/ankle. Straight leg testing was positive for the bilateral lower extremities and the examiner diagnosed radiculopathy. The examiner indicated that the Veteran's symptoms included moderate intermittent pain, mild numbness, and mild paresthesias. There was no evidence of constant pain. The examiner noted that the Veteran's sciatic nerve was affected and that his overall condition was mild. The examiner also indicated that there was no evidence of muscle atrophy and that deep tendon reflexes were hypoactive. In January 2017, the Veteran underwent an unemployability assessment in which he reported constant pain that radiated down his legs. He also recounted three incidents in which he lost use of his legs and reported that his condition affected his ability to walk, noting he ambulates with a cane. He reported flare-ups of his condition that required use of a walker or that he stay in bed. He also indicated that his pain is around 9/10 during his flare-ups. The Veteran reported that he was prescribed muscle relaxers, Codeine, and Lidocaine patches for treatment. He reported a tingling sensation on the hairs on his legs and noted that anything that touches his legs causes sharp pain that radiates to his feet. Additional VA treatment records reflect that, in February 2017, an EMG and nerve conduction study were scheduled but that the Veteran was unable to tolerate the motor study. Thus, the study was incomplete and terminated prematurely. In a January 2018 neurology follow-up, the Veteran reported that the pain worsens with activity or positional changes (i.e., bending over). It was noted that the Veteran has antalgic gait with assistance of a cane. In January 2019, the Veteran reported that he continued to experience a shooting and burning pain down his bilateral lower extremities. In April 2019, the Veteran reported that he did not have any relief from his neuropathic pain. He also reported issues walking and indicated that, although aquatic therapy was helping, he still could barely walk. Physical examination revealed decreased vibration sensation in his lower extremities. For the reasons that follow, the Board concludes the Veteran's bilateral lower extremity sciatica is most appropriately evaluated under DC 8520 for paralysis of the sciatic nerve for the entire appeal period. VA can change the DC that a particular disability is rated under so long as the rating under that Diagnostic Code has not been in effect for 20 years. See 38 C.F.R. § 3.951(b); see Murray v. Shinseki, 24 Vet. App. 420, 425 (2011). VA must explain the change in the DC. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Here, the medical evidence of record, including a May 2016 VA examination, does not characterize the Veteran's disability as neuralgia; rather, the noted diagnosis is sciatica. In addition, the Board finds DC 8520 is more favorable to the Veteran than his currently assigned rating under DC 8720 because it results in the assignment of a higher 40 percent rating. After review of the evidence of record and resolving all reasonable doubt in the Veteran's favor, the Board finds a 40 percent rating is warranted for the Veteran's bilateral lower extremity sciatica as evaluated under DC 8520 for the entire period on appeal. Although the May 2016 VA examiner characterized the Veteran's conditions as mild, which is consistent with a 10 percent rating, the Veteran's lay statements of record, as noted in November 2007 and March 2008 VA treatment records, indicate he reported experiencing severe weakness, tingling, and pain in his bilateral lower extremities that has resulted in falls. The record also reflects that the Veteran's condition has resulted in severe restriction of his mobility and range of motion and that he requires the use of an assistive device for ambulation. Furthermore, medical evidence of record reflects that the Veteran's condition resulted in moderate-severe symptomatology, as noted in a December 2012 VA treatment record. Lastly, the Board finds the Veteran's inability to complete diagnostic studies because of resulting pain indicative of at least moderately-severe symptomatology. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds a 40 percent rating for the Veteran's service-connected sciatica of the bilateral lower extremities is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes the issue of whether the Veteran is entitled to a rating in excess of 40 percent for his bilateral lower extremity sciatica is addressed in the remand section below. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 40 percent for sciatica of the left lower extremity is remanded. 2. Entitlement to an initial rating in excess of 40 percent for sciatica of the right lower extremity is remanded. A review of the record reflects that the Veteran has not been provided a separate VA Peripheral Nerves examination to determine the severity of his service-connected bilateral lower extremity sciatica. As a result, it is unclear whether the Veteran meets rating criteria for a rating in excess of 40 percent for his service-connected conditions and remand is required to make this determination. The matters are REMANDED for the following action: Schedule the Veteran for a VA Peripheral Nerves examination with an appropriate clinician to determine the severity of the Veteran's bilateral lower extremity sciatica. The examiner should report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner is asked to review the Veteran's claims file and elicit any necessary information from the Veteran to provide an opinion as to whether the Veteran's bilateral lower extremity sciatica has resulted in severe symptomatology with marked muscular atrophy and/or complete paralysis of the sciatic nerve (characterized by foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost) at any time during the period from September 7, 2006. (CONTINUED ON NEXT PAGE) A complete rationale for all opinions must be provided. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.