Citation Nr: 22042885 Decision Date: 07/28/22 Archive Date: 07/28/22 DOCKET NO. 15-12 092 DATE: July 28, 2022 REMANDED Entitlement to a compensable disability rating prior to February 15, 2018, in excess of 20 percent from February 15, 2018, until March 23, 2021, and in excess of 30 percent thereafter for right lower extremity radiculopathy (femoral) is remanded. Entitlement to a disability rating in excess of 20 percent prior to March 23, 2021, and in excess of 40 percent thereafter for left lower extremity radiculopathy (sciatic) is remanded. Entitlement to a compensable disability rating prior to February 15, 2018, in excess of 20 percent from February 15, 2018, until March 23, 2021, and in excess of 30 percent thereafter for left lower extremity radiculopathy (femoral) is remanded. Entitlement to a disability rating in excess of 20 percent prior to March 23, 2021, and in excess of 40 percent thereafter for right lower extremity radiculopathy (sciatic) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities prior to February 15, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2002 to August 2006. In April 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter has been before the Board on several prior occasions, most recently in August 2021. There has not been substantial compliance with the Board's prior remand directives and another remand is now required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an interim March 2022 rating decision, the agency of original jurisdiction (AOJ) assigned separate 20 percent disability ratings for the right and left lower extremity sciatic nerve impairment from January 30, 2012. The AOJ also assigned separate 20 percent ratings for the right and left extremity femoral nerve impairment from February 15, 2018, and granted TDIU from February 15, 2018. As a maximum schedular rating has not been awarded for the entire period on appeal, and the Veteran had not expressed satisfaction with the ratings, the appeal continues. AB v. Brown, 6 Vet. App. 35 (1993). 1. Entitlement to a compensable disability rating prior to February 15, 2018, in excess of 20 percent from February 15, 2018, until March 23, 2021, and in excess of 30 percent thereafter for right lower extremity radiculopathy (femoral). 2. Entitlement to a disability rating in excess of 20 percent prior to March 23, 2021, and in excess of 40 percent thereafter for left lower extremity radiculopathy (sciatic). 3. Entitlement to a compensable disability rating prior to February 15, 2018, in excess of 20 percent from February 15, 2018, until March 23, 2021, and in excess of 30 percent thereafter for left lower extremity radiculopathy (femoral). 4. Entitlement to a disability rating in excess of 20 percent prior to March 23, 2021, and in excess of 40 percent thereafter for right lower extremity radiculopathy (sciatic). The claims must be remanded again because the February 2022 retrospective medical opinion is inadequate. The examiner said they were unable to review a nerve conduction study performed in 2012 and then provided an opinion based on assumptions of what is typically identified in those studies. The 2012 study was added to the file in March 2022 but there was no addendum opinion or clarification opinion obtained prior to adjudication of the claim. Because the opinion provider did not consider all evidence of record, the March 2022 retrospective opinion is inadequate for adjudication. See Nieves-Rodriguez v. Peake, 21 Vet. App. 295 (2008). Additionally, the severity of the Veteran's conditions without the ameliorative effects of medication is unclear. The opinion provider stated, "From 2012-2017, the severity of the [V]eterans condition has appeared moderate but stable, as pain levels have typically been reported in the 5-6/10 level with occasional flares to 8-9/10. However, it should be noted that the veteran had been taking increasing amounts of tramadol (from 150mg daily to 300mg daily) and thus his pain levels may have been somewhat masked around 2017-2018. On 2 pain assessments for pain level with/without medication (1/25/2017, 8/17/2017), the [V]eteran consistently reported that his 4-6/10 pain levels would be in the 8-9/10 range without medication." On remand the opinion provider should clearly identify the severity of the Veteran's disabilities absent the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). 5. Entitlement to TDIU based on service-connected disabilities prior to February 15, 2018. Adjudication of the TDIU claim is deferred as inextricably intertwined with the remanded claims. The matters are REMANDED for the following action: 1. Obtain another retrospective medical opinion from an appropriate clinician to determine the severity of the Veteran's service-connected radiculopathies involving the sciatic and femoral nerves during the entire period on appeal, since December 2013. Copies of all pertinent records must be made available to the examiner for review. Based on the review of the record (and examination if needed), the examiner should answer the following: (a) During the time period prior to March 2021, identify all neurological manifestations of the Veteran's service-connected back disability, with reference to specific nerve involved and level of severity. In answering this, the examiner must (i) review the January 2012 nerve conduction study associated with the record in March 2022; (ii) provide a retrospective opinion of the severity of the neurological symptoms during those periods of time, as to the frequency, severity, and duration without consideration of the ameliorative effects of medications. If, the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination, and; (iii) consider and discuss as necessary the Veteran's VA treatment records identifying reports of numbness to his feet and of neuropathic pain, and his credible lay testimony of having shooting pain down his legs and hips. A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner's own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the claim for TDIU prior to February 15, 2018. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.