Citation Nr: 21040005 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-57 646 DATE: July 2, 2021 REMANDED Prior to October 15, 2016, entitlement to a compensable rating for left lower extremity radiculopathy is REMANDED. On and after October 15, 2016, entitlement to a rating in excess of 20 percent for the service-connected left lower extremity radiculopathy is REMANDED. REASONS FOR REMAND The Veteran served honorably in the United States Army from October 1989 to July 1993. Upon review of the record, the Board concludes that further evidentiary development is necessary. A remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing her claims prior to final adjudication. 1. Prior to October 15, 2016, entitlement to a compensable rating for left lower extremity radiculopathy is remanded. On April 15, 2009, the Veteran submitted a VA Form 21-4138. Therein, the Veteran relayed her desire to reopen a claim for the lower back injury that became progressively worse over the past years. At that time, the Veteran submitted the treatment records from an orthopedic surgeon. Therein, it was recorded that the Veteran reported that she walked with a limp, pain radiated through the left thigh, and her left foot would go numb. The provider reported pain with palpation of the left gluteal muscles. The provider noted that the Veteran demonstrated pain with rotation of the left hip, and the Patrick test referred pain into the left thigh. In April 2009, an EMG/NCS Report was generated at Southern Brain and Spine. At that time, the Veteran reported radiating left leg pain and numbness. The Veteran relayed that, "(t)he leg pain is worse with sitting and generally affects the anterior thigh the most. She has been treated with PT, bracing, activity restriction, and a variety of medications." The provider noted diminished sensation along the lateral border of the left leg. In December 2009, a report was generated a Southern Brain and Spine. Therein, the Veteran relayed persistent left leg pain. An examiner noted that thoracolumbar range of motion (ROM) was restricted, which did produce left leg radiating pain. In February 2010, a Neurology Note from the New Orleans VAMC was associated with the claims file. After nerve conduction studies and an EMG, a provider reported that there was no evidence of peripheral neuropathy in the left lower extremity. In May 2014, an EMG/NCS Report was generated at Southern Brain and Spine. At that time, the Veteran reported that she continued to struggle with left lower leg numbness and paresthesia. The examiner noted that sensation was moderately diminished in the left lower leg. The examiner reported that the Veteran's nerve conduction tests results were normal. However, the examiner noted that the EMG exam of the left leg muscles did show evidence of chronic axonal denervation. In June 2014, the Veteran underwent a VA examination that addressed the severity of thoracolumbar spine conditions. The examiner reported diagnoses for lumbosacral strain, lumbar degenerative arthritis, lumbar stenosis with spondyloschisis, severe arthropathy, and severe lumbar radiculopathy. Later in the examination report, the examiner indicated that the Veteran did not have left leg radicular pain or symptoms. The examiner remarked that the Veteran maintained a pre- and post-operative diagnosis for severe lumbar radiculopathy. In July 2014, a Rehab Medicine Clinic Note was generated at the New Orleans VAMC. At that time, the Veteran reported chronic lower extremity pain and mild numbness. The Veteran reported that her symptoms had increased after L4-L5-S1 surgical fusion in 2013. In November 2015, the Board addressed the Veteran's claim for service connection for radiculopathy of the left lower extremity, secondary to a service-connected lumbar spine disability. At that time, the Board found that, "the competent and credible evidence of record reflects it is as least as likely as not the Veteran has radiculopathy of the left lower extremity due to her service-connected lumbar spine disorder." In April 2021, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). The Veteran testified that she endured a lot of tingling, and she had issues with walking and balance. The Veteran testified that she could not stand or walk for extended periods of time. The Veteran testified that she endured daily spasms throughout the day, and she endured numbness and swelling of the left foot. The Veteran testified that she tripped over her own feet, because she was unable to walk properly / pick up her foot in a normal manner. When questioned by her representative, the Veteran testified that the left lower extremity radiculopathy had increased in severity after the AOJ granted service connection for the disability in November 2015. The Veteran relayed that the disability was treated with physical therapy, water therapy, and acupuncture. During the appellate period, the Board notes that the record have numerous references to the Veteran's reports of left lower radiculopathy symptoms. The Veteran is competent to report these left lower radiculopathy symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes that the June 2014 VA examiner did not report a diagnosis for left lower radiculopathy pain or symptoms. The VA examiner's report was delivered in spite of numerous lay and medical reports of left lower radiculopathy symptoms. On remand, the agency of original jurisdiction (AOJ) should secure a VA examination report, from a qualified medical technician, that addresses the severity of the Veteran's radiculopathy of the left lower extremity between April 15, 2009 and October 15, 2016. 2. On and after October 15, 2016, entitlement to a rating in excess of 20 percent for the service-connected left lower extremity radiculopathy is remanded. On October 15, 2016, the Veteran underwent a VA examination that addressed the severity of thoracolumbar spine conditions. The examiner noted diagnoses for lumbar decompression / fusion, degenerative disc disease, stenosis, and spondylolisthesis. At that time, the Veteran relayed a continued loss of sensation in the left foot since the surgery, her left foot stayed cold, and constant muscle spasms in the lower extremity. The Veteran did not report constant pain for the left lower extremity radiculopathy. However, the Veteran reported mild intermittent pain, paresthesias and/or dysesthesias, and numbness. The VA examiner diagnosed "mild" left lower extremity radiculopathy. In December 2016, an Addendum was generated at the New Orleans VAMC. Therein, a provider noted a history for chronic bilateral radiculopathy to feet, which had increased after the lumbar fusion in 2013. In April 2021, the Veteran supplied sworn testimony to the undersigned VLJ. The Veteran relayed that the disability was treated with physical therapy, water therapy, and acupuncture. When questioned by the undersigned, the Veteran relayed that the service-connected disability had increased in severity after the October 2016 VA examination. The Veteran relayed that the left lower leg "spasms have gotten worse." The Veteran's April 2021 hearing testimony suggests an increase in the severity of her service-connected radiculopathy of the left lower extremity after the October 2106 VA examination. When available evidence is too old for an adequate evaluation of the Veteran's current disability, VA's duty to assist includes providing a more current examination. See Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board, therefore, concludes that the Veteran must be scheduled for a new examination for her service-connected radiculopathy of the left lower extremity disability. Consequently, the matters are REMANDED to the AOJ for the following action: 1. The AOJ should secure an appropriate, retrospective VA examination report that addresses the severity and manifestations of the Veteran's service-connected radiculopathy of the left lower extremity disability between April 15, 2009 and October 15, 2016. Access to the VBMS and Legacy Content Manager electronic claims files must be made available to the examiner for review. The VA examiner should provide a complete rationale for any opinions provided. 2. Additionally, the AOJ should secure the appropriate VA examination to ascertain the severity and manifestations of the Veteran's service-connected radiculopathy of the left lower extremity disability on and after October 15, 2016. Access to the VBMS and Legacy Content Manager electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The VA examiner should provide a complete rationale for any opinions provided. If the VA examiner is unable to conduct all the required testing or concludes that certain aspects of the required testing are not necessary or are not relevant for the Veteran's left lower extremity disability, he or she should clearly explain why that is so. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal. If the benefit(s) sought are not granted, the AOJ must issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and her representative an opportunity to respond. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.