Citation Nr: 22018151 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-25 284A DATE: March 28, 2022 REMANDED Entitlement to an initial disability rating greater than 10 percent for a back disability, described as a chronic lumbosacral strain, is remanded. REASONS FOR REMAND The Veteran had honorable active service with the United States Air Force from September 1998 to April 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for moderate chronic lumbosacral strain, assigning a 10 percent disability rating effective August 29, 2011. In November 2019, a rating decision granted service connection for sciatic nerve radiculopathy of the right lower extremity at 10 percent effective October 25, 2019. Then in a May 2021 Board decision the Veteran's right lower extremity sciatic nerve radiculopathy was increased to 20 percent from October 25, 2019. The May 2021 Board decision also remanded the claim for an increased rating of the lumbosacral strain for development. However, the development was not completed so in July 2021 the claim was again remanded for development including a VA opinion. In January 2022, the Veteran was afforded a new VA opinion based on a review of the records. After a Supplemental Statement of the Case (SSOC), the claims are back before the Board. Entitlement to an initial disability rating greater than 10 percent for a back disability is remanded. 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 the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Board finds that the RO did not substantially comply with the remand for the following reasons. While the RO obtained a new opinion, the January 2022 opinion failed to address the correct standard when reviewing the evidence. The opinion stated that based on the evidence of record, there is insufficient evidence to establish a nexus with greater than 50 percent probability, that the Veteran's subjective and neurological abnormalities, to include bladder problems, are proximately due to or the result of his lumbosacral strain. However, the current standard of review of the evidence is whether the claimed condition is as likely as not, a 50 percent likelihood, or greater. The Board emphasizes that the VA expert must consider whether the evidence is sufficient to establish a 50 percent likelihood. Since the examiner did not properly address whether it was as likely as not that the Veteran's neurological abnormalities were due to or associated with his service-connected thoracolumbar spine condition, a new opinion is required. The January 2022 opinion also did not adequately address whether the Veteran had any radiculopathy symptoms in the left lower extremity at any point during the period of appeal. While the opinion suggested that the Veteran's spine would not cause any neurological abnormalities, the Board was drawn to the fact that the Veteran is service connected for sciatic nerve radiculopathy of the right lower extremity at 20 percent effective October 25, 2019, which appears to contradict with the opinion that no neurological abnormalities could be associated with a back strain. Moreover, in general, the January 2022 opinion did not address the relevant medical evidence as requested in the previous remands or adequately address the lay statements. In summary, the RO did not ensure that the January 2022 VA opinion considered all available, existing, and relevant evidence or provide an opinion using the proper standard of review of evidence. Thus, the RO did not substantially comply with the May 2021 and July 2021 remands and another medical opinion is required. See Stegall, 11 Vet. App. 268 at 271. The matters are REMANDED for the following action: 1. Update VA medical records. 2. Schedule the Veteran for a VA examination by a VA medical expert with the appropriate training and expertise to determine the nature and etiology of the Veteran's neurological abnormalities possibly related to his spine. A complete copy of the claims file must be made available to the examiner. The examiner must consider the Veteran's lay reports of observable symptomatology. The examiner must also take a history regarding the symptoms from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran has any neurological abnormalities due to or associated with his thoracolumbar spine condition including bladder problems? If so, the examiner should complete the appropriate Disability Benefits Questionnaire for each condition identified. The examiner should consider and discuss the Veteran's reports of urine retention, sensations of frequency with hesitancy, pain with urination, and complaints of urine frequency in 2015, 2016, and 2017. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran experienced any radiculopathy signs or symptoms in the left lower extremity at any point during the period on appeal? If so, determine the severity of any radiculopathy symptoms in the left lower extremity and complete any necessary Disability Benefits Questionnaire/s. In so opining, the examiner should consider and discuss the Veteran's complaints of pain radiating to the left lower limb with sensory changes in 2012. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. (Continued on the next page) 3. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and her representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.