Citation Nr: 20008482 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 15-21 612 DATE: January 31, 2020 REMANDED Entitlement to service connection for a neck disability, to include degenerative disc disease, is remanded. Entitlement to service connection for a left leg disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1971 to January 1973 and in a dishonorable period of service from February 1981 to May 1982. See November 2011 VA administrative decision. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for a neck disability and a left leg disability. In May 2019, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded to afford the Veteran adequate VA examinations. The claim is back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the issues on appeal to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a neck disability, to include degenerative disc disease, is remanded. The Veteran contends that his neck disability was caused by an injury in service when he was carrying heavy loads. See December 2012 report of general information. The May 2019 remand noted that the Veteran was afforded a VA examination in May 2013, but the examination did not opine on nexus. A remand was necessary to provide a nexus opinion. The Veteran was afforded a VA examination in September 2019. The examiner opined that it was less likely than not that the Veteran’s neck disability was related to service because there were no documents of an in-service injury or condition and the pain did not begin until 2003. See September 2019 VA examination report. However, the examiner did not address the Veteran’s lay statements to the effect that he injured his neck while carrying heavy loads in service. The examiner improperly discounted lay testimony and relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion. Such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Thus, a new examination is required. 2. Entitlement to service connection for a left leg disability is remanded. The Veteran contends that his left leg disability is due to a blood clot condition as a result of service. See December 2012 report of general information. Alternatively, the Veteran contends that his left leg disability is secondary to his neck disability. Id. He received treatment for his left leg disability at the Imperial Point Medical Center. Id. These medical records are not part of the evidentiary record. The Veteran asserts that these medical records could have an impact on the determination of his entitlement to service connection. See January 2020 appellate brief. The Veteran was afforded a VA examination in September 2019. The examiner opined that the Veteran has peripheral neuropathy of the left leg which is most likely due to chronic clots in his left leg. See September 2019 VA examination report. The examiner noted that the Veteran was hospitalized for a month at Imperial Point Medical Center. Id. Further, the examiner opined that the most likely cause of the Veteran’s disability are prolonged activity or coagulopathy. Id. The examiner did not opine as to whether these causes relate to service. The examiner also noted that coagulopathy was likely evaluated at the time of his hospitalization in Imperial Point Medical Center. Id. The examiner stated that these records were not available to her at the time of the examination report. Id. As the records could provide additional context to the examiner and adjudicator regarding the Veteran’s possible coagulopathy, a part of the Veteran’s contention, the Board finds the medical records relevant. The evidentiary record does not show any attempts to retrieve these medical records. Thus, the Board finds that the evidentiary record is incomplete. On remand, the AOJ should take the appropriate steps to retrieve these relevant treatment records and associate them with the evidentiary record. See 38 C.F.R. § 3.159(c)(3). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his neck and left leg disabilities that are not already of record, to include medical records from Imperial Point Medical Center. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above development is completed, schedule the Veteran for an examination to determine the nature and etiology of any neck disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all neck disabilities present. For each identified disability, the examiner is asked to respond to the following inquiry: Is it at least as likely as not that the Veteran’s neck disability was incurred in, or is otherwise related to, the Veteran’s period of active service between November 1971 to January 1973, to include from lifting heavy loads? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After the above development is completed, schedule the Veteran for an examination to determine the nature and etiology of any left leg disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination should include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all left leg disabilities present. For each identified disability, the examiner is asked to respond to the following inquiries: A. Is it at least as likely as not that the Veteran’s left leg disability was incurred in, or is otherwise related to, the Veteran’s period of active service between November 1971 to January 1973? B. Is it at least as likely as not that the Veteran’s left leg disability was (a.) caused or (b.) aggravated by his service-connected disabilities or any neck disability? The examiner should consider whether the left leg clots the Veteran contends caused his left leg disability are related to service. In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.