Citation Nr: 21000217 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-35 535 DATE: January 4, 2021 REMANDED Entitlement to service connection for a left foot disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a back disability is remanded. INTRODUCTION The Veteran served on active duty from September 1971 to November 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. In December 2019, the Board remanded these claims for additional development. After the issuance of a November 2020 supplemental statement of the case, the appeal has been remitted to the Board for further appellate review. In December 2019, the Board also remanded a claim of entitlement to service connection for prostate cancer. In a November 2020 rating decision, service connection for prostate cancer was granted. As the benefit sought on appeal was granted, further appellate review is moot. REASONS FOR REMAND The Board remanded the Veteran’s above-captioned claims in December 2019, finding that previous VA examinations were insufficient. Specifically, the Board determined that May 2019 opinions were too equivocal regarding the Veteran’s right and left feet and conclusory regarding his back. Further, the May 2019 opinions regarding each of the claimed disabilities failed to consider the Veteran’s report of lay observable symptoms, limiting the analysis to the absence of treatment reports. The Veteran underwent a series of VA examinations in January 2020, to evaluate his claimed disabilities. The examiner then provided the following opinion: Rationale: The [V]eteran has degenerative arthritis most likely due [to] aging and genetic predisposition. The [service medical records] are silent for any spine or joint condition. The recalled incident seems did not impact at long term because he did not seek any medical attention for his back after military separation. The right knee condition is caused by recent trauma. The examiner then cites to medical evidence from the Mayo Clinic’s website regarding risk factors for arthritis. Again, the Board finds that the January 2020 opinion to be equivocal and/or conclusory and fails to consider and discuss the Veteran’s assertions as to lay observable symptoms, erroneously limiting the analysis to the absence of medical treatment. Consequently, the Board finds that the RO did not ensure that the requested examinations substantially complied with the December 2019 remand directives. As such, a remand to obtain supplemental opinions is required. The matters are REMANDED for the following action: 1. Obtain supplemental opinions from the January 2020 VA examiner regarding the Veteran’s left and right foot, left and right knee, and back. The Veteran’s claims file must be made available to the examiner and the examiner must specify in the report that it was contemporaneously reviewed. All pertinent symptomatology and findings must be reported. If a new examination is warranted, any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner should then provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any claimed disability was incurred in or due to the Veteran’s active duty. In so doing, the examiner is advised that pain resulting in functional impairment is considered a disability for VA purposes even if that pain and functional impairment is not a diagnosable condition. The examiner MUST consider and discuss the Veteran’s report of in-service events and symptoms, as well as the onset and course of lay observable symptoms, such as pain. The absence of treatment alone is insufficient to render a negative etiological opinion. All rendered opinions must be accompanied by a thorough rationale. 2. The RO must review the examination reports to ensure the VA examiner’s opinion substantially comply with the Board’s remand directives. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.