Citation Nr: 21065864 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-25 123 DATE: October 27, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to a disability rating in excess of 20 percent for residuals of cold exposure of the left foot is remanded. Entitlement to a disability rating in excess of 20 percent for residuals of cold exposure of the right foot is remanded. INTRODUCTION The Veteran had active service from May 1969 to April 1971 and from March 1974 to July 1975. In August 2017 and January 2021, the Veteran testified at Board videoconference hearings. Transcripts of those proceedings are of record. When this case was most recently before the Board in March 2021 the above-noted claims were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND Although further delay is quite unfortunate, the Board finds additional development is necessary prior to final adjudication of this matter. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For numerous reasons, the Board finds substantial compliance with the March 2021 remand instructions has not been achieved. Initially, the Board notes that in the course of the most recent remand, the RO was instructed to obtain an adequate VA cold injury residuals examination. In this respect, the Board observes that pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7122, x-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis are to be assessed. This is especially important in this case as the Veteran has asserted his current bilateral knee and shoulder disabilities may have been caused by his cold exposure in service. The Veteran underwent VA cold injury residuals and knee examinations in June 2021; however, the examiner failed to perform any x-rays to determine whether the Veteran does have abnormalities caused by his cold exposure. Following the above-noted examinations, the examiner found the Veteran's claimed knee disabilities were less likely than not incurred in service to include his cold exposure therein. In support of this conclusion the examiner found no evidence of in-service knee pain related to the Veteran's cold exposure; however, the examiner failed to state whether the Veteran's cold exposure could have nonetheless caused his current knee disabilities. Additionally, the examiner wholly failed to provide opinions regarding the Veteran's claimed bilateral shoulder disabilities as requested in the March 2021 Board remand. Finally, the Board notes the RO obtained a medical opinion addressing the Veteran's claimed lumbar spine disability from an Obstetrics and Gynecology physician in May 2021. In sum, the examiner found the Veteran's current lumbar spine disability was less likely than not incurred in service. The examiner again relied on a lack of treatment or diagnosis following the Veteran's back injuries in service, but like prior examiners wholly failed to acknowledge or discuss the Veteran's credible reports of ongoing back pain since his training injury/fall in August 1969. Examiners cannot wholly rely on a lack of contemporaneous treatment or diagnosis and ignore a veteran's statements related to lay observable symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Based on the foregoing insufficiencies, the Board finds a remand is necessary in order to obtain substantial compliance with the prior remand instructions. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected cold injury residuals. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include an assessment of all consequentially related manifestations. In this respect, the examiner must perform x-rays to determine whether the Veteran has any cold exposure related abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis involving the bilateral knees, bilateral shoulders, cervical spine, or lumbar spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 2. Also, afford the Veteran a VA examination by an Orthopedic Specialist with sufficient expertise, who has not previously examined the Veteran, to address the etiology of the Veteran's claimed bilateral knee, bilateral shoulder, cervical spine, and lumbar spine disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed bilateral knee, bilateral shoulder, cervical spine, or lumbar spine disability at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service, to include the as a result of the Veteran's in-service cold exposures or his reported August 1969 physical training fall. The appropriate examiner is also asked to state whether the Veteran's bilateral knee or bilateral shoulder disabilities at least as likely as not (a 50 percent probability or greater): a) were caused by his service-connected cold injury residuals; or b) was worsened to any degree by his service-connected cold injury residuals. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. A complete rationale must be provided for any opinions expressed. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.