Citation Nr: 21077106 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-01 712 DATE: December 28, 2021 REMANDED Service connection for a low back disability is remanded. Service connection for right lower extremity condition is remanded. Service connection for left lower extremity condition is remanded. Service connection for left thumb condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from August 1974 to August 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veteran's Law Judge in February 2020; a transcript of the hearing has been associated with the claims file. These matters were remanded in April 2021 for additional development, including VA examinations and opinions. With regard to the claim for service connection of left ear hearing loss, in July 2021, the AOJ issued a rating decision which granted service connection for left ear hearing loss. This represents a full grant of benefits and therefore this issue is no longer on appeal. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. at 271. In April 2021, the Board directed that the Veteran be provided with VA examinations for his left thumb, back and bilateral lower extremity conditions. The Board instructed the examiner to account for the lay statements of the Veteran regarding the nature and onset of his back, lower extremity, and thumb pain and the March 1974 in-service incident where he was blown into the flight deck catapult apparatus. At the February 2020 hearing, the Veteran testified that his back and lower extremity problems started after he was blown across the flight deck into the catapult apparatus. He denied any subsequent back injuries and testified that while in service, he experienced radiating pain from his back to both of his legs after the catapult incident, and has continued to feel radiating pain from his back. The Board notes that the Veteran is service connected for PTSD based on the catapult apparatus incident. The Veteran testified that his left thumb disability, which has been diagnosed as tendinitis and tendinosis, was caused by his repeated falls on the flight deck during his active-duty service. Service treatment records document that the Veteran sought treatment on at least one occasion, other than the catapult incident, for his left arm and hand due to a fall on the flight deck. The Veteran is competent to report the onset and nature of his back, lower extremity and thumb symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran attended VA examinations for his left thumb, back and bilateral lower extremity conditions in June 2021. At these examinations, the Veteran was diagnosed with left thumb tendinitis, left thumb tendinosis, lumbar strain and bilateral sciatica. The examiner, a nurse practitioner, failed to address the specific circumstances identified in the Board's April 2021 order in his negative nexus opinions on the Veteran's back, thumb and lower extremity disorders, and based his negative opinion on the lack of medical treatment records. The examiner did not address whether the Veteran's bilateral sciatica was related to his lower back, or caused or aggravated by service. Although the examiner referenced the Veteran's statements, he did not explain how he considered the Veteran's description of the incident and the continuity of symptoms in reaching his conclusions. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In July 2021, the AOJ requested that the examiner clarify his opinions as to the Veteran's lower back and left thumb, reminding the examiner that a lack of documentation of in-service treatment alone does not establish lack of chronicity and the Veteran's statements should be considered as competent and weighed when forming opinions. The examiner responded with identical opinions and rationale statements. These failures to follow the Board's remand instructions require remand. The Board regrets the additional delay, but such is necessary to secure an adequate record for decision. The matters are REMANDED for the following action: 1. Associate updated VA records with the claims file. 2. Once the above is completed, obtain an addendum medical opinion from a different clinician regarding the Veteran's diagnosed left thumb disabilities. The entire claims folder, including the entire text of this decision, must be reviewed in conjunction with the examination; provision of a new physical examination is at the discretion of the reviewer. The reviewer must opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left thumb disabilities are caused or aggravated by service. The reviewer must specifically consider and comment upon the Veteran's description of the onset, nature and continuity of his left thumb symptoms. The examiner's attention is directed to the Veteran's February 2020 testimony, a transcript of which is included in the claims file. A full and complete rationale for any opinion expressed is required. 3. Obtain an addendum medical opinion from a different clinician regarding the Veteran's current low back disabilities, including bilateral sciatica. The entire claims folder, including the entire text of this decision, must be reviewed in conjunction with the examination; provision of a new physical examination or testing is at the discretion of the reviewer. For each identified lower back condition, including sciatica, the examiner must opine as to whether it is at least as likely as not (50 percent probability or greater) that any current back disabilities are caused or aggravated by service. The Veteran's competent statements regarding the nature and onset of his radiating lower back pain and the March 1974 incident where the Veteran was blown into the flight deck catapult apparatus must be specifically discussed. The examiner's attention is directed to the Veteran's February 2020 testimony, a transcript of which is included in the claims file. A full and complete rationale for any opinion expressed is required. 4. Then, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case and return the appeal to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.