Citation Nr: 21067555 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 09-27 627 DATE: November 4, 2021 REMANDED Entitlement to service connection for a left hip disability, including as due to a service-connected disability, is remanded. Entitlement to service connection for a left foot disability, including as due to a service-connected disability, is remanded. Entitlement to service connection for a left knee disability, including as due to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran had active service from October 1979 to October 1982. This appeal has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision. Most recently, in February 2021, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). 1. Entitlement to service connection for a left hip disability, including as due to a service-connected disability, is remanded. The Veteran essentially contends that he incurred a left hip disability during active service or, alternatively, a service-connected disability caused or aggravated his left hip disability. The Board previously found multiple medical opinions of record concerning the contended etiological relationship between a left hip disability and active service, including as due to a service-connected disability, to be inadequate for VA adjudication purposes. Unfortunately, a review of the most recent VA medical nexus opinion dated in May 2021 demonstrates that it also is inadequate for VA adjudication purposes. First, the May 2021 VA clinician relied upon the most recent VA examination (which is dated in February 2018) as support for his negative nexus opinion. Both parties to the September 2020 Joint Motion for Partial Remand (Joint Motion) argued successfully to the United States Court of Appeals for Veterans Claims (Court) that the February 2018 VA examination and medical nexus opinion were inadequate for VA adjudication purposes. The Court granted the Joint Motion later in September 2020. Thus, it was error for the May 2021 VA clinician to rely upon the February 2018 VA examination in his opinion. Second, the May 2021 VA clinician erred in finding persuasive support for the negative nexus opinion in the lack of records linking the Veteran's left hip disability to a service-connected disability. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Thus, the Board finds that, on remand, another opinion should be obtained which addresses this matter. 2. Entitlement to service connection for a left foot disability, including as due to a service-connected disability, is remanded. The Veteran next contends that he incurred a left foot disability during active service and experienced continuous post-service disability. He alternatively contends that a service-connected disability caused or aggravated his left foot disability. As noted, the Board previously found multiple medical opinions of record concerning the contended etiological relationship between a left foot disability and active service, including as due to a service-connected disability, to be inadequate for VA adjudication purposes. Unfortunately, a review of the most recent VA examination and medical nexus opinion dated in May 2021 demonstrates that this evidence also is inadequate for VA adjudication purposes. First, at the May 2021 VA foot conditions Disability Benefits Questionnaire (DBQ), the VA examiner noted the Veteran's complaint of left foot pain and then stated, "Given the Veteran's description of his back, knee, and hip pains, it does not appear as though he has a foot condition. The symptoms he describes are more closely associated with radiculopathy of the lumbar spine." This clinician did not reconcile the apparent finding of no left foot disability with the prior finding in February 2018 that the Veteran experienced left foot arthritis. No x-rays were conducted as part of the May 2021 VA foot conditions DBQ. The Board again acknowledges that the Court found the February 2018 VA examination to be inadequate for VA adjudication purposes. The May 2021 VA clinician also did not explain whether the Veteran's complaint of left foot pain resulted in functional impairment such that it could be considered a disability under Saunders. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (finding that service connection is warranted for complaints of pain which result in functional impairment). The May 2021 VA foot conditions DBQ further contained no physical examination findings concerning either of the Veteran's feet. Second, the May 2021 VA clinician erred in providing an internally inconsistent medical nexus opinion concerning the contended etiological relationship between a left foot disability and active service. This clinician first stated that the Veteran did not have an active foot disability and there was "no evidence" to support finding an etiological link between a service-connected disability and a left foot disability. (The Board notes parenthetically that this part of the opinion violates Buchanan and Barr.) The May 2021 clinician then stated: Review of the evidence does not suggest/establish that the service connected conditions aggravated the left foot condition beyond its natural progression. A review of the records did not reveal any records that showed that the service connected condition had aggravated the Veteran's left foot condition beyond its natural progression. Therefore it is less likely than not that the service connected conditions aggravated the left foot condition beyond its natural progression. It is not clear to the Board what "left foot condition" the May 2021 VA clinician is referring to here in his medical nexus opinion. It also is not clear from a review of this opinion whether, in fact, the Veteran experiences a left foot disability which could be attributed to active service. Thus, the Board finds that, on remand, another examination and opinion should be obtained which addresses this matter. 3. Entitlement to service connection for a left knee disability, including as due to a service-connected disability, is remanded. The Veteran finally contends that he incurred a left knee disability during active service and experienced continuous post-service disability or, alternatively, a service-connected disability caused or aggravated his left knee disability. As noted, the Board previously found multiple medical opinions of record concerning the contended etiological relationship between a left knee disability and active service, including as due to a service-connected disability, to be inadequate for VA adjudication purposes. Unfortunately, a review of the most recent VA medical nexus opinion dated in May 2021 demonstrates that it also is inadequate for VA adjudication purposes. The May 2021 VA clinician found persuasive support for the negative nexus opinion in the lack of records linking the Veteran's left knee disability to a service-connected disability. See Buchanan, 451 F.3d at 1337, and Barr, 21 Vet. App. at 303. Thus, the Board finds that, on remand, another opinion should be obtained which addresses this matter. The Board finds that judicial review is frustrated in this appeal by the AOJ's apparent inability to comply with prior remand directives. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the AOJ to re-certify this appeal to the Board without complying with the prior remand instructions. Given this error, another remand is required. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's left hip disability. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left hip disability is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or aggravated a left hip disability. A rationale must be provided for any opinion(s) expressed. The clinician is advised not to review or rely upon medical opinions dated in August 2008, May 2011, February 2018, and in May 2021 in preparing his or her own opinions. 3. Schedule the Veteran for examination to determine the current nature and etiology of his left foot disability. The claims file and a copy of this REMAND should be provided to the clinician for review. Based on a review of the claims file and the results of the Veteran's examination, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left foot disability, if diagnosed, is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or aggravated a left foot disability, if diagnosed. The clinician finally is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's complaints of left foot pain result in functional impairment. A rationale must be provided for any opinion(s) expressed. The clinician is advised not to review or rely upon medical opinions dated in August 2008, May 2011, February 2018, and in May 2021 in preparing his or her own opinions. 4. Forward the claims file and a copy of this REMAND to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran's left knee disability. Based on a review of the claims file and the results of the Veteran's examination (if held), the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a left knee disability is related to active service. The clinician next is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a service-connected disability caused or aggravated a left knee disability. A rationale must be provided for any opinion(s) expressed. The clinician is advised not to review or rely upon medical opinions dated in August 2008, May 2011, February 2018, and in May 2021 in preparing his or her own opinions. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.