Citation Nr: 21075163 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 11-28 643 DATE: December 17, 2021 REMANDED Entitlement to service connection for a sleep disorder is remanded. Entitlement to service connection for a headache disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty (AD) from August 1988 to August 1992 and had additional periods of active service in the reserves including from May to September 2002 and while on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board) is from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In support of these claims, the Veteran testified at a videoconference hearing in October 2013 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board denied these claims in a February 2020 decision, which the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (CAVC or "the Court"). In November 2020, the parties filed a Joint Motion for Remand (JMR), which the Court granted in an Order that same month, vacating the Board's decision denying these claims and remanding them back to the Board for further development and readjudication. In April 2021, to this end, the Board in turn remanded these claims back to the RO (Agency of Original Jurisdiction (AOJ)). However, another remand of these claims is necessary to substantially comply with the prior remand directives and Court-granted JMR. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to service connection for a sleep disorder 2. Entitlement to service connection for a headache disability 3. Entitlement to service connection for a right ankle disability 4. Entitlement to service connection for a left ankle disability 5. Entitlement to service connection for a left knee disability Unfortunately, another remand is necessary so that medical opinions complying with the Court's directives can be obtained. In granting the JMR, the Court has instructed that, while the lack of contemporaneous evidence is relevant, it may not generally serve as the sole basis for discrediting lay statements or testimony. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Pond v. West 12 Vet. App. 341, 3452 (1999). Additionally, while VA examiners have opined on whether the Veteran's sleep disorder and headache disability are potentially the result of environmental exposures while he was deployed, they did not provide any opinion more generally on whether these disabilities are related to his service. Accordingly, these claims are again REMANDED for the following still additional development and consideration: Obtain still more medical comment concerning the nature and etiology of the Veteran's bilateral ankle disability, left knee disability, headache disability, and sleep disorder particularly in terms of whether it is as likely as not these disabilities originated during qualifying active military service or, if the ankle or knee disabilities involve arthritis, initially manifested within a year of his discharge from qualifying service, or are otherwise related or attributable to qualifying service. To assist in making these necessary determinations, all pertinent symptomatology and findings must be reported in detail and all indicated diagnostic testing and evaluation completed. The claims file, including a complete copy of this remand and the Court-granted JMR, must be made available to the examiner for review and consideration of the relevant medical and other history, including the Veteran's lay statements regarding why he believes these disabilities are the result of his service and the associated symptoms he alleges that he has experienced continuously since his service. When responding, whether favorably or unfavorably, the examiner must provide rationale for all opinions expressed, preferably citing to clinical findings or other evidence in the record supporting conclusions and/or accepted medical authority. The examiner is advised that the Veteran has testified credibly under oath that he has experienced continuous symptomology of all these conditions since being discharged from service. The lack of contemporaneous medical records, while relevant, cannot be the sole or exclusive basis for discrediting his testimony or statements regarding his continuous symptomology. That said, the examiner does not have to blindly accept, as true, the Veteran's claim of continuous symptoms since his service. However, if the examiner (like the prior examiner) believes there should be more documentation in the file of these claimed disabilities at some earlier point in time, either during the Veteran's service or sooner after conclusion of his service, there must be more explanation of why it is reasonable to have this expectation. Moreover, the examiner must be certain not to confuse or conflate continuity of symptoms with continuity of care ("chronicity of care") since only continuity of symptoms, not care or treatment, is required. If the examiner ultimately cannot provide the requested etiology opinions without resorting to mere speculation, this not only must be so stated expressly but, as importantly, the examiner must provide the reasons why an opinion would require speculation. As examples, the examiner must indicate whether there is any further need for information or testing necessary to make an informed determination, whether an opinion cannot be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner, or whatever other reason precludes a sufficiently definitive response. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.