Citation Nr: 22016158 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-42 637 DATE: March 21, 2022 REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine degenerative arthritis with intervertebral disc syndrome (IVDS) prior to January 14, 2020, and in excess of 40 percent thereafter, is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the femoral nerve is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy of the femoral nerve is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1965 to October 1968. This matter came before the Board of Veterans Appeals (Board) on appeal from a January 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied a rating higher than 20 percent for lumbar spine disability, and denied a rating higher than 10 percent for left lower extremity radiculopathy of the sciatic nerve. In December 2019, the Board remanded this case for additional development. In a July 2020 rating decision, the RO, in pertinent part, increased the rating for the Veteran's lumbar spine disability from 20 percent to 40 percent, effective January 14, 2020, and increased the rating for left lower extremity radiculopathy of the sciatic nerve from 10 percent to 20 percent, effective December 12, 2017. Additionally, in the July 2020 rating decision, the RO granted service connection for right lower extremity radiculopathy of the sciatic nerve with a rating of 20 percent, effective August 28, 2018, and granted service connection for right lower extremity radiculopathy of the femoral nerve with a 20 percent rating, effective January 14, 2020. The RO also increased the rating for left lower extremity radiculopathy of the femoral nerve from 10 percent to 20 percent, effective December 12, 2017. In Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that the Board has jurisdiction to address ratings for associated radiculopathy without requiring a separate notice of disagreement as to the radiculopathy ratings when those issues were part of the Veteran's claim for an increased rating. Thus, as in Chavis, the Board will address the ratings for bilateral lower extremity radiculopathy of the femoral and sciatic nerves in this case. 1. Entitlement to a rating in excess of 20 percent for lumbar spine degenerative arthritis with IVDS prior to January 14, 2020, and in excess of 40 percent thereafter. The Board sincerely regrets further delay; however, remand is necessary before deciding this claim. A remand order confers upon a Veteran a right to substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries V. Peake, 22 Vet. App. 97 (2008). In December 2019, the Board, in pertinent part, remanded the Veteran's increased rating claim for lumbar spine disability due to deficiencies noted in a January 2018 VA examination. The Board found the examination did not allow the Board to properly assess the Veteran's level of functional impairment, as the January 2018 examiner noted pain on motion that caused functional loss, but did not note the point in the range of motion at which pain began. The Board directed the RO to schedule a new examination and "[i]f pain is noted, the point during range of motion at which pain starts must be clearly indicated." The Veteran was afforded a VA examination in January 2020. Unfortunately, although the examiner noted pain on motion that caused functional loss, he did not clearly indicate the point during range of motion at which pain starts. As such, the opinion does not comply with the December 2019 remand directives and another remand is required. See Stegall, 11 Vet. App. 268, 271. 2. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve. 3. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve. 4. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the femoral nerve. 5. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy of the femoral nerve. The Board notes that a VA spine examination has been ordered above as part of the required development for the issue of an increased rating for the lumbar spine disability. As that examination is likely to produce information relevant to the issues of increased ratings for bilateral lower extremity radiculopathy of the sciatic and femoral nerves, these issues must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present, to include neurological impairment, and comment on the severity of those manifestations. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). R. Behlen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.