Citation Nr: 21001914 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 15-18 995 DATE: January 12, 2021 REMANDED Entitlement to service connection for an unspecified condition affecting the left lower extremity is remanded. REASONS FOR REMAND The Veteran served in the United States Air Force on active duty from February 2003 to September 2004. The issue comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2017. A transcript of the hearing has been associated with the record. In June 2018, having found new and material evidence was received, the Board reopened the Veteran’s claim of service connection for an unspecified condition affecting the left lower extremity. The Board remanded the Veteran’s claim for further development and to provide VA examinations. The Board again remanded the above claim in August 2020 to provide an addendum medical opinion to address the etiology of the Veteran’s left lower extremity condition. The case has since been returned to the Board for appellate review. While the Board regrets further delay, another remand is necessary to ensure substantial compliance with the August 2020 remand directives. Entitlement to service connection for an unspecified condition affecting the left lower extremity is remanded. The Board previously remanded the Veteran’s claim in August 2020 to provide an addendum opinion to the Veteran’s December 2019 VA examination. The Board instructed the RO to provide an opinion as to whether the Veteran’s left lower extremity condition was due to his military service. Specifically, the Board directed that the VA medical examiner address the Veteran’s lay statements regarding his observable symptomatology, to include pain, associated with the left lower extremity found at any point during the pendency of the Veteran’s claim period. Additionally, a medical opinion was required to address whether the Veteran’s pain from his undiagnosed condition reached the level of functional impairment of his earning capacity. In September 2020, the RO provided an addendum medical opinion from the examiner of the December 2019 VA examination. The VA examiner reviewed the Veteran’s claims file and provided the medical opinion that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. In support, the examiner stated only one service treatment record found in the record identified the Veteran’s left knee condition. Additionally, the examiner rationalized that no documentation was able to be located that showed the Veteran suffered from any chronic or recurrent left knee condition or symptoms. Finally, the examiner reported that the Veteran denied any chronic or recurrent left knee conditions or symptoms at the examination performed in December 2019, and at that time his left knee examination and x-ray were normal. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. Here, the previous Board remand directives instructed the examiner to address the Veteran’s lay evidence of pain associated with the Veteran’s left lower extremity condition. The September 2020 addendum opinion failed to address the Veteran’s complaints of left leg pain found in VA treatment records from March 2014 and May 2014, and during the November 2017 Board hearing. As such, the Board finds this case must be remanded to provide a medical opinion in compliance with the August 2020 remand instructions. As service connection may be warranted if evidence shows a disability was present at any point during the claim period, the Board finds that an addendum VA medical opinion is required to address the Veteran’s lay evidence of symptomatology, and to determine the etiology of the Veteran’s left lower extremity condition that occurred during the pendency of the Veteran’s claim for service connection, filed in January 2014. See McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran’s medical records, during service and since separation, show complaints of pain in his lower extremities. The term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability.” See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Accordingly, remand is necessary to determine if the Veteran’s pain in his left lower extremity impaired the Veteran’s earning capacity during the pendency of his appeal, prior to the December 2019 VA examination. The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder any outstanding VA treatment records. 2. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, send the Veteran’s claims file to an appropriate clinician, other than the VA examiner who performed the December 2019 VA examination, if possible, for an opinion as to the etiology of the Veteran’s left lower extremity condition. If the examiner deems it necessary, afford the Veteran a VA examination. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Provide the claims file, including a copy of this REMAND, to the examiner for review. Following a review of the entire record, including all available lay statements, private and VA medical treatment records, and examination reports, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s unspecified condition affecting the left lower extremity is due to his military service. For purposes of this examination and opinion, the examiner must consider the full record to include: (1) the Veteran’s lay statements of observable symptoms, to include the Veteran’s lay testimony in the November 2017 Board hearing and March 2014 VA Form 21-4138 Statement in Support of Claim; (2) all relevant VA and private treatment records; and (3) the Veteran’s military personnel records and service treatment records. The examiner is asked to address the evidence of record noting the Veteran’s reported pain due to his unspecified lower left extremity condition, during the current period on appeal beginning in January 2014. To the extent possible, provide an opinion as to the resulting limitations caused by the Veteran’s left lower extremity pain on occupational tasks. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, 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.