Citation Nr: 21001854 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-16 292 DATE: January 12, 2021 REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a bilateral ankle disorder is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from September 1972 to September 1974. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2018. A transcript of the hearing is of record. This matter was most recently before the Board of Veterans’ Appeals (Board) in September 2020, at which time the matter was remanded for further development. At that time, the Board noted the history of the prior Board decision and the directives from the previous remand resulting from that Board decision. The Board observed that while the requested examinations were performed and the required opinions were rendered, the directives of the remand were not complied with. The examiners were to consider statements from the Veteran regarding the onset and continuity of symptomatology since service. The examiners had to also concede that the Veteran sustained injuries to low back, ankle, and knees while in service. The Board noted, at that time, that the opinions obtained did not address the Veteran’s statements regarding continuity nor did the examiners address that it had been conceded that the Veteran sustained injuries to his low back, ankles, and knees in service. The Board further noted the Court’s decision in Dalton v. Nicholson, 21 Vet. App. 23 (2007), where it was held that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury but relied on the service treatment records to provide a negative opinion. As to the ankle issues, the Board directed that following a review of the file, the January 2020 VA examiner render the following opinion: Was it at least as likely as not (50 percent probability or greater) that any diagnosed ankle disability, to include arthritis, first manifested in service, within a year after discharge, or was otherwise related to active service. When providing this opinion, the examiner was to consider and address the statements from the Veteran regarding the onset and continuity of symptomatology since service. The examiner was also to address and discuss the concession that the Veteran sustained injuries to his ankles in service. As to the knees and ankles, following a review of the file, the February 2020 VA examiner was requested to render the following opinion: Was it at least as likely as not (50 percent probability or greater) that any diagnosed back or knee disability, to include arthritis, first manifested in service, within a year after discharge, or was otherwise related to active service. When providing this opinion, the examiner was to consider and address the statements from the Veteran regarding the onset and continuity of symptomatology since service. The examiner was also to address and discuss the concession that the Veteran sustained injuries to his back and knees in service. While the requested opinions were obtained, as to the knees and back, the examiner stated that she had reviewed the statements from the Veteran regarding the onset and continuity of symptomatology since service. She also reported that there was no new official medical documentation to support the concession that he sustained injuries to his back and knees in service. As to the ankle, the examiner stated that the only service treatment record evidence of problem was the "Bilat. calcaneal S.F." diagnosed in 1972. There was no mention of ankle injury. There was no additional evidence presented after discharge. As noted above, the examiners were to address and discuss the concession that the Veteran sustained injuries to his back, knees, and ankles in service. In other words, the examiners, when rendering the requested opinions, were to concede that the Veteran had sustained injuries to his back, knees, and ankles while in service. As demonstrated in the above opinions, the examiners indicated that the record did not reveal that the Veteran had sustained injures to these body parts. As a result, the rendered opinions are based, at least in part, on the premise that no injuries occurred, which is in direct conflict with the directives set forth in the remand. The Board errs as a matter of law when it fails to ensure compliance with the instructions of its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). The matter must be remanded for compliance with the directives of the prior Board remand. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. If available, return the claims folder to the VA examiner who provided the October 2020 and December 2020 back and knee opinions and the examiner who provided the October 2020 and December 2020 ankle opinions. Following a review of the file, the ankle opinion provider is requested to render the following opinion: Is it at least as likely as not (50 percent probability or greater) that any diagnosed ankle disability, to include arthritis, first manifested in service, within a year after discharge, or was otherwise related to active service. When providing this opinion, the examiner must consider and address the statements from the Veteran regarding the onset and continuity of symptomatology since service. The examiner must also address and discuss the conceded ankle injuries in service. Following a review of the file, the back and knee opinion provider is requested to render the following opinion: Is it at least as likely as not (50 percent probability or greater) that any diagnosed back or knee disability, to include arthritis, first manifested in service, within a year after discharge, or was otherwise related to active service. When providing this opinion, the examiner must consider and address the statements from the Veteran regarding the onset and continuity of symptomatology since service. The examiner must also address and discuss the conceded back and knee injuries in service. If the examiners are not available refer the file to an appropriate examiner, with the examiner addressing the above questions. All opinions are to be supported by clear rationale. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. S. Kelly, 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.