Citation Nr: 21075285 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-52 997 DATE: December 20, 2021 REMANDED Entitlement to service connection for cellulitis is remanded. Entitlement to a TDIU prior to July 3, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1986 to February 1990 and from January 2000 to August 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the agency of original jurisdiction (AOJ). This matter was remanded for further development in June 2019, June 2020, and July 2021. Most recently, the claim was remanded to obtain an adequate medical opinion as to the etiology of the Veteran's cellulitis. A VA opinion was associated with the file in September 2021. The Board finds the opinion is inadequate. Thus, further remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) 1. Entitlement to service connection for cellulitis is remanded. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand orders. Where the remand orders of the Board were not complied with, the Board itself errs in failing to ensure compliance. Id. In its July 2021 remand, the Board requested a VA nexus opinion in connection with the Veteran's claim for service connection for cellulitis. The September 2021 VA opinion is inadequate. The September 2021 examiner opined that none of the causes of the Veteran's cholelithiasis or pancreatitis or their subsequent complications, including cellulitis, were related to his rib resection. However, the examiner did not address all the Veteran's contentions. In a September 2013 correspondence, the Veteran argued that during a surgery related to his in-service motor vehicle accident and service-connected rib resection, doctors removed his gallbladder and spilled gastric juices over his pancreas and spleen which both had to be removed. Additionally, he contends that during surgeries related to his in-service motor vehicle accident, including the rib resection, doctors missed injuries to his gall bladder. Although the September 2021 examiner addressed the lack of scar tissue from the Veteran's rib resection and the unlikelihood that the rib resection led to pancreatitis, the examiner did not reconcile this opinion with medical evidence from September 2016 which suggests undiagnosed obstructing gall stones for many years led to the need for a pancreatectomy, splenectomy, cholecystectomy, and lysis of adhesions in the abdominal cavity. The September 2021 and September 2020 VA examiners determined these abdominal surgeries were to cause of the Veteran's cellulitis. Thus, a medical examiner must comment on the connection between any complications due to the Veteran's service-connected rib resection and his cellulitis. 2. Entitlement to a TDIU prior to July 3, 2014 is remanded. Finally, as a decision on the Veteran's service connection claim for cellulitis could impact the claim for a TDIU prior to July 3, 2014, the claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Final appellate review of this claim must be deferred until the appropriate actions concerning the Veteran's service connection claim are completed and the matters are either resolved or prepared for appellate review. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his rib resection and cellulitis. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 2. After completion of the development requested above, the AOJ should forward the entire claims file in electronic records to the September 2021 VA examiner or, if that examiner is unavailable, then to another qualified VA examiner. If additional examination is indicated, it should be scheduled in accordance with applicable procedures, and all indicated studies should be performed. 3. The claims file must be available to and be reviewed by the examiner, to include any newly obtained evidence as a result of the above ordered development. The examiner should provide an opinion regarding the nature and etiology of the Veteran's cellulitis, which addresses the Veteran's service treatment records, post-service medical records, and lay statements. 4. The examiner should provide an opinion, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's cellulitis is proximately due to or aggravated by the Veteran's service-connected rib resection. The examiner is asked to specifically address whether the Veteran's gallbladder removal was related to his rib resection and if so whether the gallbladder surgery led or contributed to the Veteran's cholelithiasis or pancreatitis or their subsequent complications, including cellulitis. Additionally, the examiner should address whether injuries to the Veteran's gall bladder were missed during his rib resection. Any negative opinion must be reconciled with the medical evidence from September 2016 which suggests undiagnosed obstructing gall stones for many years led to the need for a pancreatectomy, splenectomy, cholecystectomy, and lysis of adhesions in the abdominal cavity. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 5. After ensuring compliance with these objectives, the AOJ should readjudicate the remanded claims, to include the claim for a TDIU. If either benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate period for response. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman Associate 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.