Citation Nr: 21006251 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 12-04 578 DATE: February 3, 2021 REMANDED Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for low back disorder is remanded. Entitlement to service connection for left hip disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1976 to March 1979. This appeal comes before the Board of Veterans’ Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. A subsequent October 2009 rating decision reconsidered the claims and confirmed and continued the previous December 2008 denial. Recently in January 2020, the Board remanded for obtaining a secondary service connection nexus opinion for the aforementioned conditions, and in doing so, the examiner was specifically asked to consider and discuss various evidence and contentions, as well as the effects, if any, of any altered gait, impaired weight bearing, and/or reported falls associated with the Veteran’s service-connected right ankle condition. Although a VA medical opinion has been furnished since the Board remand, the Board regrettably finds another remand necessary, as the obtained opinion is not in substantial compliance with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The February 2020 VA examiner furnished an opinion that seems to actually address direct service connection for the right ankle condition instead. The examiner discussed how the in-service injury was mild and had resolved – a point that is irrelevant, as the Veteran is service-connected for the ankle and the question is whether the severity of that condition has caused or aggravated the other claimed disabilities. The previous Board remand specifically requested that the examiner consider and discuss the effects, if any, of any altered gait, impaired weight bearing, and/or reported falls associated with the Veteran’s right ankle, and in doing so, was also advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. The February 2020 VA examiner pointed out that the Veteran has a diagnosis of Wernicke-Korsakoff dementia and that its prominent symptom is confabulation, and proceeded to not provide this opinion. However, as the credibility determination is a legal determination to be made, the Board finds it necessary for another remand for the examiner to provide this requested opinion without making any credibility determination. If the medical evidence is not consistent with the Veteran’s statements and does not show the impairment he reports (such as altered gait, etc.), then the examiner can certainly base an opinion on what is versus is not shown by the objective evidence. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from January 2020 to the present. 2. Return to the file to the February 2020 VA examiner or to another examiner to determine the nature and etiology of the Veteran’s left ankle, left hip, and low back disorders. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the opinion. The examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that any diagnosed left ankle, left hip, and/or low back disorder was caused or aggravated by his service-connected right ankle disorder. Aggravation in this context is defined as any increase in disability. Although the examiner specifically considered and discussed the evidence enumerated in the January 2020 Board remand directives, the examiner failed to consider the following in furnishing the opinion: The examiner must consider and discuss the effects, if any, of any altered gait, impaired weight bearing, and/or reported falls associated with the Veteran’s right ankle. It is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If, however, his reports are inconsistent with the objective medical evidence concerning symptoms and impairment due to the right ankle condition, then the examiner can certainly comment on those inconsistencies. The Board acknowledges the examiner’s statement that the Veteran has a diagnosis of Wernicke-Korsakoff dementia and that its prominent symptom is confabulation, the examiner should still provide this requested opinion without making any credibility determination. Again, if the Veteran’s reports of disability due to the ankle are inconsistent with the objective medical evidence, then this should be explicitly stated and explained. A rationale for all requested opinions shall be provided. The rationale must include a discussion of the underlying medical principles specific to the facts of this case and not simply reference generic medical literature. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.