Citation Nr: 21065709 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 14-40 295 DATE: October 27, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left lower extremity neuropathy is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1968 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The Board remanded the appeal in April 2019 and March 2021. To the extent the Veteran's representative is attempting to raise a claim of direct service connection for a lower extremity neurological disorder, the Board notes that a claim for compensation benefits pursuant to 38 U.S.C. § 1151 is separate and distinct from a claim for compensation under the laws and regulations governing service connection claims. See Anderson v. Principi, 18 Vet. App. 371 (2004). Thus, entitlement to service connection is not currently within the Board's jurisdiction. Should the Veteran wish to pursue the matter, he is encouraged to file a claim on the appropriate VA-promulgated form. Although the Board regrets the additional delay, a remand is again required, as there has not been substantial compliance with the directives of the prior Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives). In this regard, the April 2021 VA examiner failed to address whether the Veteran's additional disability was as a reasonably foreseeable outcome of Avelox use. Moreover, an internet search reveals the 2021 examiner, who is an osteopath in general practice, works at a VA facility, and is therefore not a non-VA expert, as specifically requested in the Board's prior remand. Therefore, a remand is necessary under Stegall. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Then obtain an independent medical opinion pursuant to 38 U.S.C. § 5109 with a non-VA, independent medical expert to determine the etiology of the Veteran's lower extremity neuropathy. Failure to obtain this opinion from a non-VA expert will result in another remand for non-compliance. The entire claims file should be made available to the examiner. After a review of the claims file, including the December 2018 Board Hearing Transcript and VA treatment records, the examiner should address the following: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran incurred additional disability, to include lower extremity axonal motor sensory neuropathy, peripheral neuropathy, and/or arthralgias, as a result of Avelox prescribed by VA in March 2013? If so, please identify the additional disability. In addressing this question, please consider and discuss the onset of the Veteran's neuropathy, as well as VA treatment notes specifically attributing axonal polyneuropathy to Avelox use. See May 2013, June 2013, July 2013, September 2014, and April 2016 VA treatment records. Specifically, please consider Dr. Griffith's July 2013 treatment records relating neuropathy to Avelox use, and Dr. Keenan's June 2013 statement that "it may be that the neuropathy and the arthralgias are both related to the Avelox," as well as Dr. Mulligan's April 2014 statement that "autoimmune phenomenon possibly related to the drug reaction and/or lower back conditions appears to be more likely the cause at hand." (b) If additional disability exists, based upon the specific facts and circumstances of this Veteran's case, is it at least as likely as not (50 percent probability or greater) that such additional disability: was a reasonably foreseeable outcome of Avelox use? That is, would a reasonable health care provider have considered the additional disability to be an ordinary risk of the medication prescribed and would have disclosed such risk in connection with such treatment, regardless of what risks the treatment provider actually anticipated and disclosed? Please explain why or why not. In addressing this question, please consider and discuss the precautions for Avelox. See March 2013 VA treatment records; March and October 2021 appellate briefs. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without resorting to speculation, please provide a thorough rationale for reaching that conclusion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.S. Mahoney 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.