Citation Nr: A25035443 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 231010-386794 DATE: April 17, 2025 REMANDED Entitlement to an initial disability rating higher than 20 percent of radiculopathy of sciatic nerve of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1967 until his honorable discharge in December 1969. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). This matter comes before the Board of Veterans' Appeals (Board) from an October 2022 rating decision of the Department of Veterans Affairs (VA) Regional Office. In the October 10, 2023, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. In January 2024, the Board issued a decision that granted an initial disability rating of 20 percent, but not higher, for of radiculopathy of sciatic nerve of the right lower extremity. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims. In a November 2024 Order, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, the Court vacated and remanded the January 2024 decision for compliance with the instructions in the JMPR. Higher rating for radiculopathy of sciatic nerve of the right lower extremity The parties to the JMPR determined that the Board erred in failing to remand the claim to the agency of original jurisdiction (AOJ) to obtain any outstanding VA treatment records. Specifically, in a January 2024 statement, the Veteran reported that he has had two EMGs performed at the Kansas City VA medical center (VAMC) since 2019. These results do not appear in the record, but there are references in the Veteran's VA treatment records to the EMG studies being performed. Specifically, a June 2021 treatment record references a September 2019 EMG, and there is a notation that EMG records were scanned into the Vista imaging system in August 2021. As such, remand is required to correct a pre-decisional duty to assist error to associate these EMG tests, and any other outstanding treatment records with the claims file. The Board also notes that the parties to the JMPR determined that the Board failed to address the Veteran's explicitly raised argument that the October 2022 VA examination was inadequate because the examiner failed to comply with the May 2022 remand directives. The parties also determined that in the January 2024 decision, the Board failed to adequately explain why the Veteran's condition was not "moderately severe" by failing to define that term relative to the other levels of severity in consideration of Veteran's disability picture. On remand, the Board was to address the Veteran's explicitly raised argument and explain what "moderately severe" means and how that standard relates to Veteran's disability picture. In light of the JMPR, in particular the parties finding as to outstanding VA treatment records not being associated with the claims file, the Board finds that remand is warranted to obtain a VA examination in compliance with the May 2022 remand directives. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file outstanding VA treatment records, including a September 19, 2019, EMG referenced in June 2021, and August 2021 EMG results that were noted in the CAPRI records as being scanned in the Vista imaging system. See VBMS entry with Document Type "CAPRI," Receipt Date 9/4/2022, pages 108 and 154 of 209. 2. After associating all outstanding relevant records with the Veteran's claims file, schedule the Veteran for a VA peripheral nerves examination to determine the current severity his right lower extremity radiculopathy. The claims file should be reviewed in conjunction with the examination. All necessary tests should be performed, and the results reported. All symptomatology associated with the peripheral neuropathy of the bilateral lower extremities should be reported. To the extent possible, the examiner must provide estimates of the severity of the Veteran's disability during flare-ups based on a review of the record. The examiner should provide a rationale for the characterization of the severity of the Veteran's right lower extremity radiculopathy (e.g. why it is rated as mild or moderate and not severe) with citation to supporting evidence. (Continued on the next page) ? If the examiner is unable to provide an opinion on the matter, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge, a deficiency in the record, or the examiner. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lance, 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.