Citation Nr: 20056485 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 18-30 723 DATE: August 26, 2020 REMANDED Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to March 1989. In a decision issued in June 2019, the Board, in pertinent part, denied entitlement to service connection for a lumbar spine disorder and a bilateral ankle disorder. The Veteran appealed those denials to the United States Court of Appeals for Veterans’ Claims (Court). In April 2020, the Court issued an Order that vacated the Board’s June 2019 decision and remanded the matters on appeal for adjudication consistent with the instructions outlined in a March 2020 Joint Motion for Partial Remand (JMPR) by the parties. In the Board’s June 2019 decision, the issues of entitlement to service connection for degenerative joint disease of the right heel and bilateral knees were remanded for additional development. It appears that these issues are still undergoing development and the Agency of Original Jurisdiction (AOJ) has not yet returned these issues to the Board. Accordingly, the Board will not address them herein. 1. Entitlement to service connection for right and left ankle disorders is remanded. As noted above, the Board previously denied service connection for right and left ankle disorders based, in large part, on the report from a VA examination conducted July 2017. In the April 2020 JMPR, the parties agreed that the Board erred when it relied on the July 2017 VA examination that failed to explain why the Veteran’s in-service ankle injuries would need to be chronic in order to satisfy the in-service injury prong or to provide a basis for a nexus. The parties agreed that remand was warranted to obtain a VA examination from an examiner who supported his/her conclusion with an analysis the Board could consider and weigh against contrary opinions. In light of the April 2020 JMPR, the Board finds that remand for a new VA examination is warranted. The Board emphasizes that a remand by the Board or the Court confers on the claimant a legal right to substantial compliance with the remand order. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Stegall v. West, 11 Vet. App. 268, 271 (1998). When a claim is remanded to provide the claimant with a VA medical examination or opinion, VA must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for a lumbar spine disorder is remanded. In the April 2020 JMPR, the parties also agreed that the Board erred when it did not analyze whether a VA medical opinion would be warranted for the Veteran’s lumbar spine disorder pursuant to McLendon v. Nicholson, 20 Vet. App. 79, 81-84 (2006). Consistent with the April 2020 JMPR, the Board finds that, in light of the evidence showing a current lumbar spine disorder and spine pain during active duty service in September 1987, a VA examination is required consistent with the directives herein. See Id. The matters are REMANDED for the following actions: 1. Make reasonable efforts to obtain any outstanding and relevant VA and private treatment records, to include the March 2018 VA radiological reports and VA treatment records from April 2018. 2. Following the development above, obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s right and left ankle disorders (a physical examination may be conducted, if deemed necessary). The claims folder (including a copy of this remand) must be provided to and reviewed as part of the examination. All clinical findings should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s right and/or left ankle disorder had its onset in or is otherwise related to the Veteran’s active duty service. In rendering the above opinion, consideration must be given to the Veteran’s STRs showing a right ankle injury in September 1987 and left ankle injury in September 1988. The examiner must also consider and discuss the Veteran’s reports that he had continuous ankle pain and weakness through the end of his military service. See January 2018 NOD. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A complete rationale for all opinions/conclusions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall 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. Following the development above, obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran’s lumbar spine disorder (a physical examination may be conducted, if deemed necessary). The claims folder (including a copy of this remand) must be provided to and reviewed as part of the examination. All clinical findings should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the Veteran’s lumbar spine disorder had its onset in or is otherwise related to the Veteran’s active duty service. In rendering the above opinions, consideration must be given to the Veteran’s STRs showing a reports of spine pain in September 1987. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A complete rationale for all opinions/conclusions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall 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. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. E. Metzner, 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.