Citation Nr: 20054953 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 10-29 588 DATE: August 19, 2020 REMANDED Entitlement to service connection for a left ankle disability is remanded. REASONS FOR REMAND The Veteran served on active duty from May 2006 to March 2009, with additional service in the Air National Guard and Army Reserves. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision. The Veteran testified before the undersigned during a March 2017 hearing. In April 2015, the Board initially remanded this matter to allow the Veteran to reschedule his hearing before the Board. This matter was again before the Board in July 2017 and February 2019, when it was remanded for additional development. Entitlement to service connection for a left ankle disability is remanded. A remand by the Board confers on a Veteran, 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. 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. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the February 2019 remand, the Board directed the agency of original jurisdiction (AOJ) to obtain a new medical opinion from an appropriate clinician regarding whether the Veteran’s left ankle condition is at least as likely as not related to a disease or injury in service. This opinion was found to be necessary because the previous November 2017 examiner provided a negative opinion on this matter without providing adequate rationale, to include addressing the Veteran’s observations of chronic pain since his original injury during service. Following the Board’s remand, the AOJ attempted to schedule a new examination in September 2019; however, notification was received in October 2019 that the Veteran failed to report for the scheduled exam. All attempts to contact the Veteran by mail and telephone have failed. While the Board acknowledges that the Veteran has the responsibility to maintain updated contact information with VA, the Board’s February 2019 remand directed the AOJ to obtain a new medical opinion based on the Veteran’s statements and medical history, a task that does not clearly require the Veteran to be scheduled for a new examination unless the selected clinician deems one is necessary. As there is no indication in the record that a new examination was required to obtain the requested opinion, a remand is necessary to obtain the requested opinion and ensure compliance with the Board’s February 2019 remand directive. The matters are REMANDED for the following action: Obtain a new medical opinion regarding the nature and etiology of any left ankle disability. The Veteran should only be scheduled for a new examination if deemed necessary by the selected examiner. If the selected examiner determines that a new examination is necessary and the Veteran fails to report for the scheduled examination, the examiner should provide an explanation for why the requested opinion cannot be provided without a new examination. The examiner must opine whether any current left ankle disability is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s complaints of chronic left ankle pain since service. 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 opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The fact that his report of symptoms is not corroborated by contemporaneous medical treatment records is not, by itself, a sufficient reason to reject the Veteran’s report of symptoms capable of lay observation. The examiner is further advised that it is not necessary for pain to attributable to a specific diagnosis or pathology to be considered a service-connected disability so long as the pain is productive of functional impairment. The examiner’s report must include a complete rationale for the opinion. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.