Citation Nr: 23009554 Decision Date: 02/15/23 Archive Date: 02/15/23 DOCKET NO. 15-41 001 DATE: February 15, 2023 REMANDED Issue of entitlement to an initial rating higher than 30 percent for left upper extremity radiculopathy (LUE) radiculopathy is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from September 1967 to May 1969, to include service in the Republic of Vietnam. Among numerous other commendations, the Veteran received the Purple Heart Medal. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2013 rating decision issued by the Department of Veterans Affairs (VA). See September 2014 Notice of Disagreement (NOD); September 2015 Statement of the Case (SOC); November 2015 Substantive Appeal (VA Form 9). The Veteran testified before a Decision Review Officer in a July 2015 hearing. A transcript of that hearing has been prepared and associated with the evidence of record. In June 2019, the Board remanded the claim for further development. The Board again remanded the claim for further development in January 2021. During the pendency of the appeal, the agency of original jurisdiction (AOJ) granted the Veteran's LUE radiculopathy a higher initial rating of 30 percent, effective January 18, 2012. The Veteran testified before two different Veterans Law Judges (VLJ) about his LUE radiculopathy. See January 2019 Hearing Transcript; July 2021 Hearing Transcript. These VLJ's have both signed below. As there have been two hearings by two separate VLJs on the issue on appeal, a panel decision with three VLJs is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran was afforded an opportunity to testify before a third VLJ. See December 2022 BVA Letter. However, the Veteran did not respond about whether he wanted a hearing and, as explained in the December 2022 BVA letter, it is presumed that the Veteran does not want another Board hearing. The Board notes that the Veteran's claims of entitlement to service connection for right and left lower extremity radiculopathy have been granted by the AOJ, which is considered full grant of benefits sought on appeal for those two claims. See September 2014 NOD; May 2021 Rating Decision. In addition, the December 2021 Board decision addressed the Veteran's claims of entitlement to service connection for erectile dysfunction and to an increased rating for multilevel cervical disc disease status post anterior cervical discectomy and fusion C7-T1. These claims are, thus, no longer before the Board. Entitlement to a rating in excess of 30 percent for LUE radiculopathy is remanded. Unfortunately, the Board finds that another remand is necessary to clarify which of the Veteran's peripheral nerves are affected as part of his service-connected LUE radiculopathy. The September 2013 VA examiner found that the Veteran had moderate incomplete paralysis of the radial, musculocutaneous, and long thoracic nerves; each of which are considered part of the middle radicular group. The December 2019 VA examiner found moderate incomplete paralysis of the middle radicular group but found normal radial and median nerves. The January 2020 VA examination for neck conditions also indicates that the Veteran had moderate incomplete paralysis of the middle radicular group. Finally, the February 2021 VA examination for peripheral nerve conditions found the Veteran to have moderate incomplete paralysis of the radial, ulnar and lower radicular group. The VA examiner found his left middle radicular group to be normal. Id. While the September 2013, December 2019, and January 2020 VA examiners' findings could reasonably suggest an overall problem with the Veteran's LUE middle radicular group, the February 2021 VA examiner seems to suggest only a lower radicular group problem. The Board finds that clarification is needed. The Board notes that the January 2021 Board decision had remanded this claim for clarification by a VA examiner because of conflicting evidence about which of the Veteran's LUE peripheral nerves are affected. But the February 2021 VA examiner only explained that his affected nerve findings were based on the present examination of the pain, reflexes and sensation. See February 2021 VA Examination for Peripheral Nerve Conditions. The VA examiner did not discuss any of the prior VA examiners' findings nor provide an explanation for any conflicting evidence. The Board finds that an addendum opinion from a VA examiner is needed. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional to determine the nature and severity of the Veteran's LUE radiculopathy. Provide the medical professional a copy of the claims file and this remand order. The medical professional should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination. The medical professional should respond to the following: (a) The Veteran's LUE radiculopathy is due to which of the Veteran's peripheral nerves and to what extent? Provided a detailed explanation and, if possible, citation to supporting evidence. In doing so, consider the Veteran's lay statement, including his report of problems lifting his left arm to put on clothes and experiencing pain, weakness, and loss of sensation in his left upper extremity. (b) Discuss the prior September 2013, December 2019, and February 2021 VA examiners' findings about the Veteran's peripheral nerves. If possible, resolve any conflict in their findings and which findings are more supported by the evidence. (Continued on the next page) For example, is the September 2013 VA examiner finding of moderate incomplete paralysis of the radial, musculocutaneous, and long thoracic nerves inconsistent with the December 2019 VA examiner finding of moderate incomplete paralysis of the middle radicular group, but normal radial and median nerves? Are the September 2013 and December 2019 VA examiners' findings consistent with the February 2021 VA examiner's finding of moderate incomplete paralysis of the radial ulnar and lower radicular group, but normal middle radicular group? 2. Readjudicate the claim. B. MULLINS Veterans Law Judge Board of Veterans' Appeals R. FEINBERG Veterans Law Judge Board of Veterans' Appeals TBD To Be Determined Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lin, M 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.