Citation Nr: 20042214 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 08-30 412 DATE: June 22, 2020 REMANDED Entitlement to service connection for a right foot condition is remanded. Entitlement to service connection for a right ankle condition is remanded. Entitlement to service connection for a right hand condition is remanded. REASONS FOR REMAND The Veteran had qualifying service from June 1969 to June 1971. In March 2014, April 2015, and September 2015, the Board remanded all issues herein for further development. In December 2017, the Board denied all issues herein. In August 2018, the U.S. Court of Appeals for Veterans Claims (CAVC) issued a Joint Motion for Remand (JMR) that vacated the December 2017 Board Decision and remanded all issues herein. In May 2019, the Board remanded all issues herein for further development consistent with the August 2018 CAVC JMR. Unfortunately, for the reasons discussed below, the Board finds that the agency of original jurisdiction (AOJ) did not substantially comply with the Board’s May 2019 Remand directives, and, as such, the Board still requires further development to comply with the August 2018 CAVC JMR. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Right foot, right ankle and right hand disorders are remanded The May 2019 Board Remand directed the AOJ to: (a) ask the Veteran to provide information regarding any self-treatment or self-medication of his right hand, right ankle, and right foot disorders that he may have engaged in since discharge from service in June 1971; and then (b) obtain addendum etiological opinions for all three disabilities. The Remand further specified that the examiner should specifically: (a) address the Veteran’s service treatment records, VA and private treatment records in the claims file, and the previous November 2004 (right ankle), August 2007 (right foot/ankle), October 2010 (right hand), September 2014 (right hand), and June 2015 (right hand, ankle, and foot) VA examination reports; (b) discuss the Veteran’s statements in the claims file, but particularly his July 2015 and April 2016 Correspondences as well as any subsequent clarification or statements regarding onset of symptoms during service and continuity of symptomatology/self-treatment since his discharge from service (notably, the examiner was also directed to provide medical reasons for accepting or rejecting the Veteran’s statements regarding continued symptoms/self-treatment since service); and (c) address the October 2010 right hand x-ray evidence regarding posttraumatic and degenerative changes and explain how those findings relate to the Veteran’s noted crushing injury in an ammunition can during service. In a June 2019 Correspondence, the Veteran clarified how he self-treated his hand, foot, and ankle (ace bandages, soaking them in hot water and Epsom salt, icing them for swelling) and stated that he has continued to suffer ever since his in-service injuries. The AOJ obtained and relied on March 2020 addendum opinions when readjudicating the claims in the May 2020 Supplemental Statement of the Case (SSOC). However, the Board finds the March 2020 opinions to be inadequate because: (a) although the examiner noted that he reviewed the Veteran’s statements from the July 2015 and April 2016 Correspondences, he did not state that he reviewed the June 2019 Correspondence or discuss it in the opinion; (b) the examiner failed to provide medical reasons for accepting or rejecting the Veteran’s statements regarding continued symptoms/self-treatment since service; and (c) the examiner failed to address the favorable October 2010 right hand x-ray evidence (in fact, he seemed to ignore it because he wrote that the Veteran “had no post traumatic or focal findings on xray”). See Stegall, supra; Dyment, supra; Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In sum, the Board must remand for further medical development in order to comply with the August 2018 CAVC JMR. Because VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions, remand is required. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The matters are REMANDED for the following action: 1. Obtain addendum etiological opinions regarding the right hand, right foot, and right ankle disabilities. The examiner is advised that the Board found the March 2020 opinions to be inadequate because: (a) although the examiner noted that he reviewed the Veteran’s statements from the July 2015 and April 2016 Correspondences, he did not state that he reviewed the June 2019 Correspondence or discuss it in the opinion; (b) the examiner failed to provide medical reasons for accepting or rejecting the Veteran’s statements regarding continued symptoms/self-treatment since service; and (c) the examiner failed to address the favorable October 2010 right hand x-ray evidence (in fact, he seemed to ignore it because he wrote that the Veteran “had no post traumatic or focal findings on xray”). See Stegall, supra; Dyment, supra; Barr, supra. The Board defers to the examiner’s discretion to determine whether another in-person examination is required to render the requested opinions. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, Associate 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.