Citation Nr: 21001869 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-41 779 DATE: January 12, 2021 REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for pseudofolliculitis barbae is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from January 2005 to January 2011. He also served on active duty from January 2011 to August 2012, with a discharge characterized as “other than honorable.” The character of service for the period from January 22, 2011 to August 28, 2012 is considered a bar to VA benefits. See Administrative Decision, page 4, received on January 31, 2014. 1. Entitlement to service connection for a bilateral knee disability is remanded. 2. Entitlement to service connection for a bilateral foot disability is remanded. 3. Entitlement to service connection for a lumbar spine disability is remanded. 4. Entitlement to service connection for pseudofolliculitis barbae is remanded. Upon review of the evidence of record, the Board finds remand is warranted to ensure substantial compliance with our June 2020 remand directives. The Board remanded the Veteran’s claims in June of this year, because the examiner’s rationale for the opinions provided “were essentially that there was an absence of documentation in the Veteran’s service treatment records (STRs) between January 2005 and Jan 21, 2011 . . . Further, these medical opinions do not reflect that the examiner considered the Veteran’s lay statements regarding the onset and continuity of his symptoms.” See June 2020 Board remand, page 2. A different VA medical professional provided opinions a few weeks later. However, it is clear from the examiner’s report that the same mistakes were intentionally made again. From how the examiner characterized the questions in the report (“. . . whether the Veteran's medical records support . . .”) to the rationale provided (“In summary, there is no objective evidence . . .”), it is clear the examiner gave no consideration to lay statements of record. The clarity of these errors is reinforced by the examiner’s concluding sentences: “In reference to the statements above advising considering subjective lay statements and Veteran reports, these are the opinion of the person writing the instructions, and are not medical opinions. This examiner’s medical opinions, as always, are based solely on objective information found in service treatment records.” See June 2020 examination report, page 3. Consideration of lay statements is not “the opinion of the person” who wrote the instructions. The examiner’s position runs completely contrary to the Board’s remand directives and the underlying law that requires examiners to consider lay statements. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 310-311 (2007). Furthermore, it runs contrary to pertinent law that reduces the burden of proof on combat Veteran’s in establishing the occurrence an in-service injury or disease. See 38 U.S.C. § 1154(b). In other words, by law “[t]he examiner must address the veteran’s lay statements to provide the Board with an adequate medical opinion.” Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). Here, the examiner expressly and intentionally failed to address such statements. A remand by the Board confers on an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the above, remand is warranted to ensure compliance with the Board’s remand. Additionally, to ensure the Veteran’s medical history, as he understands it, is of record, additional examination will be requested. Nothing in this remand precludes the Veteran from obtaining and submitting additional evidence, e.g. witness statements or a private medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his claimed pseudofolliculitis barbae, lumbar spine, bilateral knee and bilateral foot disabilities. The examiner must review the claims file. For each current disability identified, the examiner is asked to provide a response to the following: Is the disability at least as likely as not related to service? Provide a rationale to support the opinions. In providing the requested opinions, solicit and consider the Veteran’s description of his in-service diseases, injuries and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported diseases, injuries and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? In addition to the Veteran’s statements, the examiner should consider and address other relevant lay statements of record. See, e.g., buddy statement received November 13, 2015. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon, 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.