Citation Nr: 20046071 Decision Date: 07/09/20 Archive Date: 07/09/20 DOCKET NO. 13-08 373 DATE: July 9, 2020 REMANDED Entitlement to service connection for a right leg disability, as secondary to service-connected residuals of frostbite of the bilateral feet is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1955 to December 1957. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. The matter was before the Board in January 2014, December 2014 and again in June 2015. The Board remanded the issue for additional development. In August 2017, the matter was before the Board once again. In August 2017, the Board denied the Veteran’s appeal for service connection for a right leg disability, as secondary to service-connected residuals of frostbite of the bilateral feet. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an September 2018 Order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's decision regarding entitlement to service connection for a right leg disability, as secondary to service-connected residuals of frostbite of the bilateral feet and remanded the case to the Board for further development and readjudication in compliance with directives specified. The matter was before the Board post-Remand from the Court in February 2019. In the JMPR, the parties agreed that a remand is warranted to ensure substantial compliance with the Board’s June 2015 remand directives by obtaining a new VA examination that adequately addresses whether the Veteran’s service-connected frostbite residuals have caused or aggravated his claimed right leg circulatory disability. and further development as necessary to adjudicate the claim pursuant to the September 2018 JMPR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). The Board finds that its February 2019 remand instructions have not been substantially complied with, and regrettably another remand is necessary in order to obtain an addendum opinion. See Stegall, supra. 1. Entitlement to service connection for a right leg disability, as secondary to service-connected residuals of frostbite of the bilateral feet is remanded The Veteran contends that his right leg disability is secondary to his service-connected residuals of frostbite of the bilateral feet. As previously noted, this matter has been remanded several times by the Board and the latest remand by the Board occurred in February 2019 to implement the Court’s JMPR Order and afford the Veteran a new VA examination. The Veteran was afforded a VA examination in September 2019 for his right leg condition. The September 2019 VA examiner noted that the Veteran had a history of numbness in his feet. The examiner did not diagnose the Veteran with peripheral vascular disease. However, the examiner found that the Veteran’s claimed condition was less likely than not incurred in or caused as a result of an in-service injury, event or illness and provided a rationale that the Veteran does not have peripheral vascular disease, while he had a diagnosis of edema of the legs. He added that this is most likely related to all the comorbidities including hypertension, hyperlipidemia, diabetes and age. The examiner also addressed aggravation by indicating that is was not possible to establish a baseline level of severity and that the Veteran’s condition is not aggravated as a result of his service-connected condition. However, the September 2019 VA examiner failed to specifically address the May 2015 private medical opinion by Dr. G.W., as requested by the previous Board remand instructions. See February 2019 Board Decision – Remand Directives (c), (d). The Board regrets additional delay, but a remand is necessary to obtain an addendum opinion in order to consider and address Dr. G.W.’s private medical opinion. Although strict compliance with the Board’s remand directives is not an absolute necessity; substantial compliance is required. See Stegall, supra; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Accordingly, the matter is REMANDED for the following action: 1. Return the claims file to the September 2019 VA examiner. If that examiner is not available, return the file to an examiner of appropriate knowledge and expertise. It is up to the discretion of the examiner if a new VA examination is necessary, or if an addendum to the September 2019 opinion is adequate. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner shall be conducted at this time, and included in the examination report. 2. The examiner is asked to review and specifically address the May 2015 private opinion by Dr. G.W. while issuing each of the opinions requested below. See VBMS entry with document type, “Medical Treatment Record –Non-Government Facility,” receipt date 05/04/2015, on page 5. 3. The examiner must opine if there is any diagnosed right leg disability or functional impairment, to specifically include a circulatory disability, at least as likely as not (50 percent or greater likelihood) caused by a service-connected disability, to include frostbite of the bilateral feet? The examiner must discuss the findings of the May 2015 private opinion by Dr. G.W. while issuing an opinion. If the answer to the question above is negative, is any diagnosed right leg disability or functional impairment, to specifically include a circulatory disability, at least as likely as not (50 percent or greater likelihood) aggravated by a service-connected disability, to include frostbite of the bilateral feet? The examiner must again discuss the findings of the May 2015 private opinion by Dr. G.W. while issuing an opinion. 4. The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If the opinion requested above cannot be provided without resort to speculation, the examiner must so state and whether additional information is required. 5. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefits sought in connection with the claim remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.