Citation Nr: 18143356 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 11-28 195 DATE: October 19, 2018 REMANDED Entitlement to service connection for a bilateral leg condition, to include as due to herbicide exposure, is remanded. Entitlement to service connection for shortness of breath, to include as due to herbicide exposure, is remanded. Entitlement to service connection for a liver condition, to include as due to herbicide exposure, is remanded. Entitlement to service connection for a rash around the scrotum, to include as due to herbicide exposure, is remanded. Entitlement to service connection for itching between toes, to include as due to herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1963 to April 1966. He served in the Reserve from October 1962 to April 1963. He died in June 2016; the Appellant in this case is his surviving spouse. The Appellant testified before the undersigned Veterans Law Judge (VLJ) in April 2017. A copy of the transcript has been associated with the claims file. 1. Entitlement to service connection for a bilateral leg condition, to include as due to herbicide exposure, is remanded. 2. Entitlement to service connection for shortness of breath, to include as due to herbicide exposure, is remanded. 3. Entitlement to service connection for a liver condition, to include as due to herbicide exposure, is remanded. 4. Entitlement to service connection for a rash around the scrotum, to include as due to herbicide exposure, is remanded. 5. Entitlement to service connection for itching between toes, to include as due to herbicide exposure, is remanded. Following a July 2017 Board remand, the Veteran was afforded a VA examination in September 2017 to assess the nature and etiology of his claimed conditions. However, the Board finds the examination inadequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 3.3, 312 (2007). Notably, the examiner stated that she could not provide an opinion regarding the Veteran’s claimed disabilities without resorting to mere speculation, but ultimately opined that they were not related to the Veteran’s active duty because service treatment records (STRs) were silent for these conditions. The United States Court of Appeals for Veterans Claims (Court) has held that medical opinions using the “mere speculation” language, without more, generally are disfavored because they are inconclusive as to the origin of a disability. See Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar v. Brown, 5 Vet. App. 104, 145-6 (1993). In addition, the absence of evidence of treatment for any of the aforementioned disabilities in the Veteran’s service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion. See Dalton v. Nicholson, 12 Vet. App. 23 (2007). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268 (1998). As the July 2017 remand directives were not complied with, and in accordance with Stegall, remand for full compliance with the Board’s prior remand is warranted. In this case, the Board finds that the claims must be sent back again for an addendum opinion which addresses the questions asked in the prior remand. The matters are REMANDED for the following action: 1. Obtain an opinion from a VA clinician to determine the nature and etiology of the Veteran’s bilateral leg condition, rash on scrotum, liver condition, itching between toes, and shortness of breath. The entire claims file must be made available to the clinician, and the opinion should include discussion of the Veteran’s documented medical history and assertions. After reviewing the claims file, the examiner should answer all of the following questions completely: (a.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s bilateral leg condition was causally related to active military service? (b.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s rash on scrotum was causally related to active military service? (c.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s liver condition was causally related to active military service? (d.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s itching between toes was causally related to active military service? (e.) Is it at least as likely as not (a fifty percent probability or greater) that a disability encompassing the Veteran’s shortness of breath was causally related to active military service? (f.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran’s bilateral leg condition, rash on scrotum, liver condition, itching between toes, or shortness of breath were caused or aggravated by any of the Veteran’s service-connected disabilities (as listed in a December 2012 rating decision)? A complete rationale for any opinion provided is requested. The absence of evidence of treatment for any of the aforementioned disabilities in the Veteran’s service treatment records cannot, standing alone, be a sufficient rationale for providing a negative opinion. The examiner is also advised that the Veteran was competent to report his symptoms and history, and such prior lay statements must be specifically considered in formulating any opinions. (Continued on the next page)   If the examiner rejects the Veteran’s prior statements, the examiner should provide a reason for doing so. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mukherjee, Associate Counsel