Citation Nr: 21040884 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 13-33 709A DATE: July 7, 2021 REMANDED Entitlement to an initial rating over 20 percent for service-connected left lower extremity radiculopathy associated with lumbosacral spine degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from July 1981 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A prior March 2018 Board decision previously denied a higher rating for left lower extremity radiculopathy. In January 2019, the United States Court of Appeals for Veterans Claims (Veterans Court) vacated and remanded the rating denial pursuant to a Joint Motion for Partial Remand (JMPR). Subsequently, the matter was remanded by the Board in June 2019 and July 2020. It has now returned for further appellate review. The Board notes that in an April 2021 correspondence, the Veteran's representative objected to a statement contained in an April 2021 Supplemental Statement of the Case (SSOC) relating to "a compensable rating for degenerative changes in the 5th metacarpal of the right hand." The Board observes, however, that the Veteran is not presently service-connected for any condition of the right hand and that the mention of this condition in the April 2021 SSOC appears to be an error and not relevant to the issues on appeal. Entitlement to an initial rating over 20 percent for service-connected left lower extremity radiculopathy associated with lumbosacral spine degenerative disc disease (DDD) is remanded. While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim can be decided. Initially, the Board notes that a remand by the Board confers upon the claimant, 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the July 2020 Board remand, the Veteran received a VA examination regarding the severity of his service-connected left lower extremity radiculopathy in April 2021. The examiner was directed to provide an opinion addressing the May 2014 VA examination report indicating femoral nerve involvement rather than sciatic nerve involvement and whether the disability on appeal or its symptoms are subject to fluctuation due to flare-ups or repeated use over a period of time (particularly as it is associated with a lumbar spine orthopedic disability). In the April 2021 medical opinion, the examiner stated that he was unable to access the Veteran's records. Accordingly, the Board finds the examination to be inadequate for rating purposes and that remand is warranted to obtain a new examination. The matter is REMANDED for the following action: Afford the Veteran a VA examination by a neurologist to determine the current severity of his service-connected left lower extremity radiculopathy associated with lumbosacral spine degenerative disc disease. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HIS SYMPTOMS AND HOW FUNCTIONING OR SYMPTOMS VARY WITH FLARE-UPS, REPEATED USE OVER TIME, OR OTHER SUCH CIRCUMSTANCES), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. The examiner should specifically identify all nerves involved by the lower left extremity radiculopathy on appeal and consider and discuss the significance of a May 2014 VA examination report indicating the disability involves the femoral rather than sciatic nerve. If the examiner feels that finding was inaccurate, he or she should identify the nerve deemed more likely to be involved at that time, and explain why in detail, citing supporting medical evidence as appropriate. The examiner MUST ALSO comment on or describe, to the extent possible, the impact of any REPORTED OR OBSERVED flare-ups or repeated use over time on his left lower extremity radiculopathy in terms of pathology, symptoms, or functional impairment, including consideration of any pertinent subjective reports. If the examiner is unable to provide such an opinion, he or she MUST explain why that is so in specificity. By law, the inability to directly observe functioning under such conditions is not a valid reason to avoid providing an opinion in this matter. (Continued on next page) All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.