Citation Nr: 20037555 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 16-01 227 DATE: June 2, 2020 REMANDED Entitlement to service connection for right and left leg disabilities (claimed as uneven legs), to also include consideration of secondary service connection and entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disability caused by VA medical treatment, is remanded. REASONS FOR REMAND The Veteran had active service from June 1965 to February 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Montgomery, Alabama. That decision, in relevant part, denied entitlement to compensation pursuant to 38 U.S.C. § 1151 for uneven legs due to hip surgery. In January 2019, the Veteran testified at a Board video conference hearing over which the undersigned presided. A transcript of that hearing is of record. This matter was previously before the Board in July 2019 at which time the issue was recharacterized to encompass direct and secondary service connection in addition to entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disability caused by VA medical treatment. The case is now returned to the Board. 1. Entitlement to service connection for right and left leg disabilities (claimed as uneven legs), to also include consideration of secondary service connection and entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional disability caused by VA medical treatment. In its July 2019 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of his asserted leg disabilities. The remand included instructions that the VA examiner opine whether it is at least as likely as not that the right and left leg disabilities are related to active service. The instructions also directed that if it was determined that service connection was warranted, in pertinent part, for the Veteran’s diagnosed back disability, an opinion should be provided as to whether it is at least as likely as not that such disability either (a) caused (in whole or in part) or (b) aggravates (makes worse as shown by comparing the current disability to medical evidence created prior to any aggravation) the asserted right and left leg disability (claimed as uneven legs). The Veteran was afforded a VA examination in December 2019 at which time the VA examiner provided an opinion regarding direct service connection of the asserted right and left leg disabilities. However, an opinion was not provided as to whether the Veteran’s diagnosed back disability, either caused or aggravates the asserted right and left leg disability (claimed as uneven legs). A remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence is essential for a proper appellate decision”). If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Thus, a remand is necessary to obtain an addendum medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s asserted right and left leg disability (claimed as uneven legs) is at least as likely as not secondary to a service-connected disability. The examiner is requested to answer all of the following questions as definitively as possible: (a) Is it at least as likely as not that the service-connected degenerative disc disease of the lumbosacral spine (and associated radiculopathy and scarring) caused (in whole or in part) the asserted right and left leg disability (claimed as uneven legs)? (b) Is it at least as likely as not that the service-connected degenerative disc disease of the lumbosacral spine (and associated radiculopathy and scarring) aggravates (makes worse as shown by comparing the current disability to medical evidence created prior to any aggravation) the asserted right and left leg disability (claimed as uneven legs)? In this instance, to the extent possible, the examiner should also indicate the level of such aggravation by identifying a baseline level of disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology and the history thereof, he or she must provide a reason for doing so. The absence of evidence of treatment in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Orfanoudis, 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.