Citation Nr: 1826166 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 10-06 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral leg disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to July 1966. This matter came before the Board of Veterans Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction was subsequently transferred to the RO in Cleveland, Ohio. In September, 2013 the Board remanded this matter for further evidentiary development. In March 2016, the Board denied the appeal for service connection for a bilateral knee disability and remanded the remaining issues on appeal for further development, including new examinations. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The United States Court of Appeals for Veterans Claims ("the Court") has held that a remand by the Board imposes a duty on the Secretary of Veterans Affairs to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). It further instructed that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. In its March 2016 remand, the Board requested a new examination for the Veteran's claimed bilateral leg disability. The remand directives asked that neurological testing should be accomplished and all clinical findings should be reported in detail, and requested etiological opinions regarding any leg disability's relationship to both the in-service accident and the Veteran's back disability. However, the Board's review of the record indicates that the requested leg examination was not performed. The RO did request a leg examination, which was scheduled to be performed in May 2016. However, instead of conducting a full examination, the examiner did not complete the report and stated only, "exam cancelled. Pain into legs is from the back." The Board finds that this bare statement does not constitute compliance with the remand directives and also provides no rationale for the conclusion that the leg pain is due to the back disability. A new leg examination is therefore required upon remand. Another VA examination was provided in February 2018, but the Board's review indicates that the February 2018 examiner only completed a report for a spine examination. While the remarks section of the spine examination contains a sentence that "[l]eg pain is radicular as stated in the report" and that it was likely due to the back condition and not an in-service injury, this statement does not constitute compliance with the remand orders requesting a full leg examination with detailed clinical findings, particularly since it is unclear which "report" is being referenced and therefore the Board cannot ascertain the basis of this conclusion. The March 2016 remand also requested that an addendum opinion be obtained regarding the Veteran's low back disability and directed that the opinion review lay statements relating to the development of the back disability and discuss any evidence of a continuity of symptomatology. A VA spine examination was provided in May 2016. However, in a December 2017 deferred rating decision, the RO noted in that the May 2016 VA examination was inadequate as it simply copied the opinion from the October 2013 VA examination, which the March 2016 Board remand had found to be inadequate, and did not address the remand directives. The RO therefore ordered a new examination from a new examiner, which was provided in February 2018. The February 2018 examiner did address the lay statements regarding the Veteran's in-service accident and noted that they supported his claimed back injury. However, in discussing the question of the Veteran's subsequent back treatment, the examiner stated that available documents were silent for back and leg complaints until 2013. The Board's review indicates that this is inaccurate, as VA treatment records include an initial pain assessment from January 2010 that noted the Veteran's 1964 injury and referred to his "older" low back and leg pain. The Veteran's provider noted that the Veteran also reported paresthesias and numb and tingling feet for a few years. April 2012 VA treatment records also note the Veteran's complaints of low back pain and that his provider was recommending physical therapy. The Board therefore finds the examiner's opinion to be inadequate as it is based upon an inaccurate factual premise. A new opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the issue on appeal. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current bilateral leg disability, to include any neurological disabilities. All required testing, to include neurological testing, should be completed. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current leg disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include the in-service injury, or whether it began within one year of discharge from service. For purposes of rendering a nexus opinion, the examiner should assume that the in-service incident occurred. In providing the opinion, the examiner should also consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The examiner should discuss any lay or medical evidence of a continuity of symptomatology. The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any leg disability found was aggravated by his low back disability. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation by the service-connected disability. The examiner must offer comments and opinion on the Veteran's assertion that he might have a pinched nerve as the result of his low back disability, and/or that his current diagnoses are due to the injury he sustained in service. 2. Obtain an addendum opinion for the Veteran's claimed low back disability. If deemed necessary by the examiner, afford the Veteran a VA examination. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current low back disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include the in-service injury, or whether it began within one year of discharge from service. For purposes of rendering a nexus opinion, the examiner should assume that the in-service incident occurred. In providing the opinion, the examiner should also consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. The examiner should discuss any lay or medical evidence of a continuity of symptomatology 3. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).