Citation Nr: 25004875 Decision Date: 04/10/25 Archive Date: 04/10/25 DOCKET NO. 04-30 987 DATE: April 10, 2025 REMANDED Entitlement to an initial rating in excess of 20 percent for left lower extremity (LLE) radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity (RLE) radiculopathy, prior to September 18, 2012, is remanded. Entitlement to a disability rating in excess of 40 percent for RLE radiculopathy, from September 18, 2012, is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability, prior to September 11, 2009, is remanded. Entitlement to a disability rating in excess of 20 percent for a right knee disability, from September 11, 2009, is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from October 1988 to December 1990. The Veteran died in November 2012. The appellant is the Veteran's surviving spouse. 1. Entitlement to an initial rating in excess of 20 percent for LLE radiculopathy is remanded. 2. Entitlement to an initial rating in excess of 20 percent for RLE radiculopathy, prior to September 18, 2012, is remanded. 3. Entitlement to a disability rating in excess of 40 percent for RLE radiculopathy, from September 18, 2012, is remanded. 4. Entitlement to an initial rating in excess of 10 percent for a right knee disability, prior to September 11, 2009, is remanded. 5. Entitlement to a disability rating in excess of 20 percent for a right knee disability, from September 11, 2009, is remanded. The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the August 2024 remand, the Board of Veterans' Appeals (Board) directed the Agency of Original Jurisdiction (AOJ) to obtain a retrospective addendum opinion regarding the nature and severity of the Veteran's LLE/RLE and right knee disabilities, to especially include prior to September 2012. The Board, however, finds that the subsequent development with regards to such conditions did not substantially comply with the Board directives. Specifically, the August 2024 remand directed the Department of Veterans Affairs (VA) examiner to not only speak to the nature and severity of the Veteran's RLE/LLE and right knee disabilities, but also to explicitly distinguish any symptoms and manifestations, between the Veteran's neurological and orthopedic disabilities. To this end, the last remand noted that the evidence of record, to include VA/private treatment records, often noted sciatica and right/left knee ostearthritis in the same treatment note, with no distinction in addressing what symptoms may be attributed to either condition. As such, in the remand directives, the Board required the VA examiner to reconcile such records and distinguish such findings with the treatment evidence. The Board, however, finds that such was not accomplished by the VA examiner upon the last remand. Here, the Regional Office (RO), the AOJ, acquired addendum opinions in November and December 2024 to address the nature and severity of the Veteran's RLE/LLE radiculopathies. A close review of the opinions, however, show neither opinion distinguishes between the Veteran's neurological symptoms and his orthopedic knee conditions. As an example, in the opinion, the VA examiner explicitly noted the required used of a wheelchair and cane for ambulation, both of which were noted in a VA examination for his right knee, conducted in 2012, speaking to the Veteran's arthritis. As such, it is ambiguous whether the VA examiner considered any orthopedic condition when considering the opinion regarding the Veteran's RLE/LLE or has purposefully attributed such functional loss to the neurological conditions only. Accordingly, as it is unclear if the VA examiner considered such directive in distinguishing symptoms for the lower extremity, and as such was not clearly or explicitly addressed in either 2024 opinion, the Board must find that the directives of the last Board remand had not be substantially complied with. As such, remand is again required. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following action: Obtain a VA addendum opinion, to assess the nature and severity of the Veteran's bilateral radiculopathy of the sciatic nerve. The examiner must review the claims file and should note that review in the report. The examiner should provide an opinion regarding each claimed and documented symptom/manifestations of the lower extremities, to include, but not limited to, constant pain, muscle weakness, sensory and reflex deficiencies, and incapacitating episodes that require rest, and attribute such symptoms to the Veteran's orthopedic and/or neurologic conditions. If distinguishing such symptoms are not possible from the record, the examiner is asked to explicitly make such finding of record. To this end, the examiner is asked to consider any symptoms, established either through subjective complaints or objective testing, attributable to the Veteran's neuropathy and evaluate whether his condition was considered mild, moderate, or severe, during the relevant time periods. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.