Citation Nr: 21070132 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-28 745A DATE: November 23, 2021 REMANDED The claim for service connection for right hip disability is remanded. The claim for service connection for left hip disability is remanded. The claim for service connection for right knee disability is remanded. The claim for service connection for left knee disability is remanded. The claim for service connection for right ankle disability is remanded. The claim for service connection for left ankle disability is remanded. The claim for service connection for right lower leg disability is remanded. The claim for service connection for lumbar spine disability is remanded. The claim for a total disability rating based upon individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1973 to September 1975. In May 2018, the Board denied the Veteran's claims. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2019 Order, based on a Joint Motion for Partial Remand (JMR), the Court vacated the Board's decision and remanded the case for additional development and readjudication. The Board remanded the claim in June 2020 for additional development consistent with the JMR. Unfortunately, there has not yet been substantial compliance with that Remand Order, and the claim must be remanded again. 1. Entitlement to service connection for right hip disability 2. Entitlement to service connection for left hip disability 3. Entitlement to service connection for right knee disability 4. Entitlement to service connection for left knee disability 5. Entitlement to service connection for right ankle disability 6. Entitlement to service connection for left ankle disability 7. Entitlement to service connection for right lower leg disability 8. Entitlement to service connection for lumbar spine disability 9. Entitlement to TDIU In the June 2020 Remand, the Board requested that a VA opinion regarding whether the claimed disabilities or symptoms were either caused or aggravated by a service-connected disability, specifically residuals of a right thigh gunshot wound. The opinions provided in response discussed whether the claimed disabilities were specifically caused by the service-connected disability, but not whether they were aggravated. The examiner also failed to provide an adequate rationale for the opinions provided with regard to each claimed disability. The Board also notes that following the VA opinion, an April 2021 VA examiner diagnosed right knee strain, but did not provide the requested etiology opinion. Moreover, VA treatment records note a diagnosis of polyarthralgia in the list of present illnesses. This evidence must be considered by the examiner. As there has not yet been substantial compliance with the Board's 2020 remand order regarding these issues, the Board concludes that they must be remanded in order to obtain the requested opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271. As in the previous remand, the Board finds that the issue of TDIU is inextricably intertwined with the issues remanded herein. As such, it must also be remanded and adjudicated together with the other issues on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Provide the Veteran with a VA examination with a new provider to assess the nature and etiology of the Veteran's subjective complaints of bilateral hip, knee, and ankle and back pain and symptoms. The examiner is requested to specifically consider the notation of polyarthralgia and right knee strain, state whether the Veteran has or has had during this claim either disabilities, and reconcile that finding with the notations in the medical record. Following a complete examination and review of the evidence of record and with consideration of the Veteran's statements, the medical professional must provide the following information: (a) Is it at least as likely as not that the Veteran's subjective reports of right hip, knee, ankle, and/or back pain and symptoms, to include degenerative joint disease, are caused by his residuals of a gunshot wound to the right thigh? Why or why not? (b) Is it at least as likely as not that the Veteran's subjective reports of right hip, knee, ankle, and/or back pain and symptoms, to include degenerative joint disease, are aggravated by his residuals of a gunshot wound to the right thigh? Why or why not? (c) Is it at least as likely as not that the Veteran's subjective reports of left hip, knee, ankle, and/or back pain and symptoms, to include degenerative joint disease, are caused by his residuals of a gunshot wound to the right thigh? Why or why not? (d) Is it at least as likely as not that the Veteran's subjective reports of left hip, knee, ankle, and/or back pain and symptoms, to include degenerative joint disease, are aggravated by his residuals of a gunshot wound to the right thigh? Why or why not? A complete rationale for EACH opinion must be provided. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so. 2. Provide the Veteran with a VA examination with a new provider to assess the nature and etiology of the Veteran's subjective complaints of right lower extremity pain and symptoms. All appropriate diagnostic testing should be performed, to include, if necessary, electromyogram and nerve conduction studies. The examiner should obtain from the Veteran and record in the examination report a complete history regarding the onset and continuity of symptoms. Following a complete examination and review of the evidence of record and with consideration of the Veteran's statements, the medical professional must provide the following information: (a) The examiner must identify all right leg disabilities found on examination. The examiner is requested to specifically consider the notation of polyarthralgia in VA treatment records and right lower extremity radiculopathy in a September 2012 VA examination. If the examiner determines there is not sufficient evidence to warrant a diagnosis of any right leg disability consistent with the Veteran's description of symptoms, an explanation must be provided. If the examiner determines there is no diagnosis of radiculopathy of the right leg, this must be reconciled with the September 2012 VA spine examination. (b) With respect to each diagnosis in (a), determine whether it is at least as likely as not (50 percent probability or higher) that the disability began during or was caused by the Veteran's active duty service, to include as due to residuals of a gunshot wound to the right thigh. Why or why not? (b) With respect to each diagnosis in (a), determine whether it is at least as likely as not (50 percent probability or higher) that the disability was aggravated by his residuals of a gunshot wound to the right thigh? Why or why not? (b) If the examiner determines there is not sufficient evidence to warrant a diagnosis of any right leg disability, he or she must still determine whether it is at least as likely as not that the Veteran's subjective complaints of right leg symptoms began during or were caused by his active duty service, to include as due to residuals of a gunshot wound to the right thigh. Why or why not? (c) If the examiner determines there is not sufficient evidence to warrant a diagnosis of any right leg disability, he or she must still determine whether it is at least as likely as not that the Veteran's subjective complaints of right leg symptoms are aggravated by his residuals of a gunshot would to the right thigh. Why or why not? A complete rationale for each opinion must be provided. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must indicate why this is so. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. B., 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.