Citation Nr: 1311587 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 07-34 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from April 2000 to February 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2008, the Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In an August 2009 decision, the Board affirmed the RO's denial of reopening the claim for service connection for a right leg disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2011, the Court vacated the Board's August 2009 decision and remanded the case to the Board for readjudication in compliance with the Court's memorandum decision. The Board reopened the claim of entitlement to service connection for a right leg disability in a January 2012 decision, and remanded the reopened claim for further development. A discussion of the RO's compliance with the Board Remand is addressed in the Remand portion below. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Another remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claims of service connection for a right leg disability, so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran has alleged that his leg problems began in service and have persisted since service, that he had pain in both legs during service but was only diagnosed with compartment syndrome in his left leg because he declined testing in his right leg, and that a doctor told him that if he had compartment syndrome in his left leg, he would also have it in his right leg. In this regard, the Veteran is competent to report what he has experienced, to include persistent pain (in service and since service) and what a doctor told him regarding a diagnosis of his right leg. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Pursuant to the January 2012 Board Remand, the Veteran was afforded a VA examination of his right leg in March 2012. The Veteran reported that he had compartment syndrome in his right leg since 2000 and was formally diagnosed in 2001. Indeed, this is consistent with the Veteran's previous statements of record. After a physical examination, the examiner diagnosed the Veteran with calf strain. With respect to the etiology of the right leg condition, the examiner noted that the Veteran was diagnosed with left leg compartment syndrome only. In July 2000, he was diagnosed with right calf strain, which was noted to be resolving five days later. The examiner also noted that the Veteran had a negative bone scan in July 2001. The examiner opined that it is less likely as not that the Veteran's current right leg symptoms are a continuation of symptoms noted in the military. The Board finds this opinion and rationale inadequate as the VA examiner did not address the Veteran's reported history of persistent pain since service that was identical to the pain he experienced in service, and his report that a doctor told him that if he had left leg compartment syndrome, he also had right leg compartment syndrome. The Board instructed the examiner to address the Veteran's lay statements in the January 2012 Remand. The Board emphasizes that the Veteran is competent to describe pain of his right leg experienced in service and since service, as well as what was told to him by a doctor, at that time, regarding his right leg condition. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, 1337 (Fed. Cir. 2006); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Additionally, the March 2012 examiner conducted tests, including x-rays of the right leg, noted the 2000 diagnosis of calf strain, and that the Veteran reported that he had compartmental syndrome in the right leg since 2000. The examiner did not provide a current diagnosis regarding the right leg complaints. A current diagnosis regarding the right leg symptoms, if any, should be addressed by the examiner. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall, 11 Vet. App. at 271. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. Therefore, pursuant to Stegall, the case must again be remanded for compliance with the January 2012 Board Remand and an adequate medical opinion must be obtained as to the etiology of the Veteran's right leg disability. Accordingly, the case is REMANDED for the following action: 1. If possible, request that the medical professional who conducted the March 2012 VA examination review the claims file and provide an addendum medical opinion. The claims file, including a copy of this Remand, must be made available to, and be reviewed by, the examiner. The examiner should note such review in the examination report (another examination of the Veteran is not required). If the March 2012 examiner is not available, obtain the requested opinion from another medical professional. If the examiner determines that an additional examination of the Veteran is necessary to provide a reliable opinion as to diagnosis and causation, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims folder must be made available to and reviewed by the examiner. The examiner should offer the following opinions: a) Does the Veteran have a currently diagnosed right leg disability, to include calf strain and/or compartment syndrome? If the Veteran does not have a current right leg disability, the examiner should so state. b) Is it at least as likely as not (50 percent probability or greater) that any current disability of the right leg, to include right calf strain and/or right leg compartment syndrome, began during service or is otherwise etiologically linked to some incident of active duty? In rendering this opinion, the examiner should address the Veteran's lay statements with respect to his contention of having the same right leg symptoms in service and since service, and that a doctor told him that he suffers from right leg compartment syndrome. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If an opinion cannot be rendered without resorting to speculation, the examiner should state whether the inability to provide an opinion was due to a need for further information (with the needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder. 2. Then, review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. In this regard, ensure that the questions asked by the Board has been addressed by the examiner. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the addendum medical opinion. If the requested addendum does not include adequate responses to the specific opinions requested, it must be returned for corrective action. 38 C.F.R. § 4.2 (2012); see also Stegall at 268. 3. When the development requested has been completed, and compliance with the requested actions has been ensured, this case should again be reviewed on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative, if any, should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).