Citation Nr: 25005286 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 18-53 651 DATE: April 18, 2025 REMANDED Entitlement to a rating in excess of 40 percent for right upper extremity radiculopathy, to include ulnar nerve radiculopathy, as of September 7, 2022, is remanded. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy, to include ulnar nerve radiculopathy, as of July 20, 2018, and to September 6, 2022, is remanded. Entitlement to an earlier effective date for the assignment of a rating in excess of 10 percent for right upper extremity radiculopathy, to include ulnar nerve radiculopathy, prior to July 20, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1975 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA), which is the Agency of Original Jurisdiction (AOJ). In a May 2023 decision, the Board granted a 20 percent rating for right upper extremity radiculopathy as of July 20, 2018, and to September 6, 2022; and a 40 percent rating as of September 7, 2022. In so doing, the Board denied higher ratings for both periods and an earlier effective date for a rating in excess of 10 percent, prior to July 20, 2018. The Veteran appealed the Board's denials of higher ratings for those periods and an earlier effective for the grant of a higher rating to the United States Court of Appeals for Veterans Claims. In June 2024, the Court granted a Joint Motion for Remand, vacating the May 2023 Board decision and remanding the matter for further action consistent with the terms of the Joint Motion. In September 2024, the Board remanded the matter to obtain outstanding private and VA medical records. In October 2024, the requested medical records were associated with the claims file and a letter was sent to the Veteran requesting information regarding any other outstanding medical records. The Veteran did not report any additional outstanding medical records. Therefore, the Board finds that there has been substantial compliance with the September 2024 remand requests. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 40 percent for right upper extremity radiculopathy, to include ulnar nerve radiculopathy, as of September 7, 2022, is remanded. 2. Entitlement to a rating in excess of 20 percent for right upper extremity radiculopathy, to include ulnar nerve radiculopathy, as of July 20, 2018, to September 6, 2022, is remanded. 3. Entitlement to an earlier effective date for a rating in excess of 10 percent for right upper extremity radiculopathy, to include ulnar nerve radiculopathy, prior to July 20, 2018, is remanded. The parties to the Joint Motion agreed that the Board must address private medical records indicating that the Veteran's right upper extremity radiculopathy might manifest with or result in psychological and social impairment. The Board finds that the presence, nature, and etiology of any such symptoms are medical questions. The Board is not free to substitute its own judgment for a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Medical records obtained pursuant to the September 2024 Board remand do not resolve those questions sufficiently to allow the Board to make a decision without engaging in impermissible medical judgment. Accordingly, the Board finds that remand is necessary to schedule the Veteran for VA examinations and obtain medical opinions to assess the nature and etiology of any psychological/psychiatric or social symptoms of a right upper extremity radiculopathy disability. It is also necessary to attempt to obtain any medical records pertaining to psychiatric or social disabilities or symptoms as those records are now relevant. The matters are REMANDED for the following action: 1. Obtain all outstanding pertinent VA medical records and associate them with the claims file. Contact the Veteran and request that the Veteran provide information as to treatment for right upper extremity radiculopathy and any psychiatric or social symptoms or disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA. After receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA peripheral nerve examination for the purpose of assessing any psychiatric or social symptoms of a right upper extremity radiculopathy disability (the examiner may note that a separate psychiatric examination will be scheduled to identify any separate and distinct psychiatric disabilities). The examiner must review the entire claims file, including this Remand, June 2024 Joint Motion, July 2019 private medical records noting psychological and social impairment, and VA examination reports. The examiner is asked to note any symptoms manifested by a right upper extremity radiculopathy disability, including any that could be considered psychiatric or social (these may include any neurocognitive symptoms). (a.) The examiner is asked to opine whether the Veteran's right upper extremity radiculopathy manifests with any symptoms that could be considered unusual or exceptional for that type of disability. The examiner should discuss typical symptoms for upper extremity radiculopathy and compare with the Veteran's symptoms. For any unusual or exceptional symptoms discovered, the examiner should opine whether such symptoms are at least as likely as not due to the right upper extremity radiculopathy. All provided opinions must be supported adequately by rationale. 3. Schedule the Veteran for a VA psychiatric examination for the purpose of assessing any psychiatric or social symptoms of the Veteran's right upper extremity radiculopathy. The examiner must review the entire claims file, including this Remand, June 2024 Joint Motion, July 2019 private medical records noting psychological and social impairment, and VA examination reports. (a.) The examiner should diagnose all psychiatric disabilities found or shown in the record during the pendency of this claim. (b.) For any psychiatric disability diagnosed, the examiner is should opine whether it is as likely as not that the psychiatric disability is due to, the result of, caused by, a symptom of, or a manifestation of right upper extremity radiculopathy. (c.) For any psychiatric disability diagnosed, the examiner is should opine whether it is as likely as not that the psychiatric disability has been aggravated (increased in severity) by the Veteran's right upper extremity radiculopathy. Aggravation need not be permanent. Aggravation can be found where the service-connected disability prevents treatment of, or lessens the efficacy of treatment of, the nonservice-connected disability, resulting in increase of the nonservice-connected disability. All provided opinions must be supported adequately by rationale. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hood, 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.