Citation Nr: 21005486 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-33 737 DATE: February 1, 2021 REMANDED Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right leg disability is remanded. REASONS FOR REMAND The Veteran service on active duty from February 1986 to October 1986 and from March 1991 to November 1991. He also had periods of active duty for training (ACDUTRA) from June to July 1988 and from July to August 1990. In April 2020, the Board remanded these left and right leg claims back to the local regional office (RO), i.e., back to the Agency of Original Jurisdiction (AOJ), as well as claims for service connection for right ankle, right knee, and left knee disabilities, to obtain all outstanding treatment records relevant to the claims and since additional medical comment was needed to assist in determining the etiology of these claimed disabilities. Following an August 2020 VA examination, on remand, the RO granted service connection for a chronic right ankle sprain, right and left knee strain, and a right ankle scar. If the Veteran disagrees with the initial ratings and/or effective date assigned for these now service-connected disabilities, he must separately appeal these “downstream” issues. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). As for the remaining claims for service connection for the left and right leg disabilities that are still on appeal, the Board finds that even more development is necessary prior to adjudicating these remaining claims. Notably, the prior April 2020 remand directed the VA examiner to opine on whether the Veteran’s left and/or right leg disability are related to an event, injury, or disease in service or otherwise secondary – meaning caused or aggravated by – his service-connected left ankle and foot disability. The August 2020 VA examiner noted that the Veteran has lumbar radiculopathy of the lower extremities and indicated that it is at least as likely as not aggravated beyond its natural progression by his left ankle disability. However, to date, the Veteran has not established any entitlement to service connection for a “lumbar” (i.e., low back) disability. Therefore, it is still unclear whether his left and/or right leg disabilities are caused or aggravated by his service-connected left ankle and foot disability or perhaps, even instead, by his right ankle, right knee, and left knee disabilities that were determined service connected following the Board’s prior remand of the claims. In supplemental comment, the August 2020 examiner’s rationale for the opinion on both direct and secondary service connection was verbatim and did not address the causation aspect of the theory of secondary service connection. Therefore, even that supplemental opinion also inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). Two opinions are required for secondary service connection claims: 1) is the claimed disorder “caused by” or “due to” the service-connected disability; and, 2) is the claimed disorder “aggravated by” the service-connected disability (Allen Aggravation). See Allen v. Brown, 7 Vet. App. 439, 448 (1995).   A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the Board’s remand order. Stegall v. West, 11 Vet. App. 268 (1998). As the prior remand order was not complied with, even to what could be considered acceptable substantial compliance, and in accordance with Stegall, the Board finds that supplemental medical comment is required prior to adjudicating these remaining claims concerning the left and right leg. The Board also sees the Veteran has submitted a VA Form 21-4138, Statement in Support of Claim, identifying relevant treatment records pertinent to his appeal. See also October 2020 Veteran’s Representative Correspondence. The RO apparently is in the process of obtaining these additional records. See January 2021 RO Correspondence. Once obtained, they must be considered if relevant to these claims concerning the left and right leg disabilities. Accordingly, these claims are REMANDED for the following still additional development and consideration: 1. If not done already, the RO should complete the development of records apparently already started in response to receipt of the Veteran’s October 2020 VA Form 21-4138, Statement in Support of Claim, as referenced in January 2021 correspondence. 2. After completing that development, obtain a supplemental (addendum) medical opinion from a qualified clinician concerning the nature and etiology of the Veteran’s left and right leg disabilities. A copy of this remand and the Board’s prior remand and all relevant medical and other records must be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran’s lay assertions. The examiner must provide rationale for the medical opinion offered, irrespective of whether favorable or unfavorable to these claims. Based on a review of the Veteran’s medical records, his lay statements regarding the development and treatment of these claimed disabilities, and a review of all other relevant evidence in the claims file, including, again, a complete copy of this remand and the Board’s prior remand, the examiner should answer the following question: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s left and/or right leg disability was caused OR is aggravated by his service-connected left ankle and foot disability or by any of his other service-connected disabilities, which now also include right ankle, right knee, and left knee disabilities? *The prior August 2020 VA compensation examiner only addressed causation, not also aggravation, and as explained opinions are required concerning both possibilities. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the left and/or right leg disability by the Veteran’s service-connected ankle and foot disability and/or right ankle, right knee, and left knee disabilities. (b.) If not, is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s left and/or right leg disabilities began during his service, or within a year of his discharge (if involving arthritis), or are otherwise related to an in-service event, injury or disease? *It also is unclear from the prior August 2020 examination and opinion, even supplemental opinion, whether the examiner was saying the Veteran has a lumbar spine (i.e., low back) disability accounting for the radiculopathy in his lower extremities (so left and right legs at issue). Thus, clarification is needed. If it is necessary to have the Veteran re-examined to provide this additional comment, then have him re-examined. This is left to the examiner’s discretion. The mere absence of evidence of treatment for a left and/or right leg disability in the Veteran’s service treatment records (STRs) cannot, alone, be sufficient rationale for providing an unfavorable opinion, certainly not since these claims also are predicated on the alternative notion that service-connected disability is causing or aggravating them, so not based exclusively on what occurred during service but also during the many years since service.   The examiner is also advised that the Veteran is competent to his symptoms and history and such reports must be specifically considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide reason for doing so. Rationale for the opinion therefore is essential, regardless of whether favorable or unfavorable to these claims, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.