Citation Nr: 21010346 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-35 173 DATE: February 24, 2021 REMANDED Service connection for a left leg condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1995 to March 2002. This matter originally came before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This matter was previously remanded by the Board for further development in May 2019 and is again before the Board. Service connection for a left leg condition is remanded. The Veteran believes that service connection for a left leg condition is warranted. See February 2021 Appellate Brief. In May 2019, the Board remanded the claim for a new VA examination. See May 2019 BVA Decision. The VA examination took place in November 2019. See November 2019 C&P Exam. The Board finds the VA examination inadequate, among other reasons, because it did not substantially comply with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the examination was asked to identify all current disabilities, and for each current disability, opine as to whether it was related to service. However, the examination did not provide such an opinion for the identified current disability of left lower extremity peripheral neuropathy. Additionally, the examiner was asked to address certain assertions made by the Veteran, such as a private examiner believing that he may have had permanent nerve damage to the left leg. However, that assertion was not addressed. In fact, the examination stated that the Veteran had never sought any treatment or evaluation of his nerve condition since service. Finally, the VA examination was also inadequate because it did not consider/was unable to consider all the relevant evidence of record, such as a 2012 medical record which stated that the Veteran had left “leg pains more now where he had a large hematoma during bootcamp.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); April 2018 CAPRI. For these reasons, among others, a remand is needed for a new VA examination. The matter is REMANDED for the following action: 1. Update VA and private treatment records. VA treatment records appear current up to March 2019. 2. Schedule one or more appropriate VA examinations for the Veteran’s left leg disabilities. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the examiner is requested to furnish an opinion with respect to the following: (A) Identify all left leg related disabilities existing at any point during the pendency of the appeal (i.e. since January 2015), even if they are currently asymptomatic or have resolved during the pendency of the appeal. (B) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran’s service? (C) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? (D) For each identified disability, is it at least as likely as not (a 50 percent or greater probability) that the disability is/was aggravated beyond its natural progression by any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities)? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (E) Is it at least as likely as not (a 50 percent or greater probability) that any or all of the Veteran’s service-connected disabilities (including any medications taken for the service-connected disabilities) caused or aggravated the Veteran’s obesity/being overweight including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. (F) If yes, is it at least as likely as not (a 50 percent or greater probability) that the obesity/being overweight caused or aggravated any or all of the Veteran’s left leg related disabilities including whether there is/was any incremental increase in disability or aggravation as a result of service? State whether there is/was a medically ascertainable increase in disability regardless of permanence. Any increase in disability should be described in terms of diagnosis, severity, and duration. The permanence of the aggravation is not at issue. If yes, which ones? (G) Is it at least as likely as not (a 50 percent or greater probability) that any left leg arthritis manifested to a compensable degree within one year following the Veteran’s separation from service? In providing an opinion, the examiner should consider all the evidence listed further below in this Remand. A complete rationale for all opinions offered should be provided. Address the Veteran’s documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community’s knowledge or the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation for any given opinion. 3. Schedule an appropriate VA Gulf War examination for the Veteran’s left leg disabilities. The need for an in-person examination of the Veteran is left to the discretion of the examiner. Following a review of the claims file and a copy of this Remand, the examiner is requested to furnish an opinion with respect to the following: (A) Determine whether the Veteran’s left leg symptoms are attributable to a known clinical diagnosis or a chronic multi-symptom illness of partially understood etiology and pathophysiology. (B) For any symptoms that are attributable to a known clinical diagnosis or a chronic multi-symptom illness of partially understood etiology and pathophysiology, is it at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran’s service, to include conceded environmental hazard exposure in Southwest Asia? (C) For any symptoms that are not attributable to a known clinical diagnosis or a chronic multi-symptom illness of partially understood etiology and pathophysiology, does the Veteran have objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, manifested by identified symptoms that have existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period? A “medically unexplained chronic multi-symptom illness” is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. In providing an opinion, the examiner should consider all the evidence listed further below in this Remand. A complete rationale for all opinions offered should be provided. Address the Veteran’s documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community’s knowledge or the limits of the examiner’s medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. For any and all VA examinations, in addition to the other relevant evidence of record, the examiners are asked to consider the following information with a caution that this list is not a substitute for a review of the record: (1) A list of the Veteran’s service-connected disabilities. See May 2019 Rating Decision – Codesheet. (2) A 2019 medical record showing November 1996 service treatment records mentioning left shin pain for seven days, pain on palpation, hard landings, running, and a diagnosis of cuboid syndrome versus stress fracture versus contusion. The Veteran had a 2019 diagnosis of left lower extremity peripheral neuropathy. The Veteran reported that he originally injured his left shin during bootcamp when he hit it on a wooden beam. The pain never went away. After service, the Veteran worked in law enforcement, but had to retire in part due to his left knee. See November 2019 C&P Exam. (3) A 2019 medical record showing a diagnosis of a left knee hyperpigmented contusion. The Veteran shared the story about the bootcamp injury and stated that he noticed some discoloration in the painful area. It had stayed the same since onset. There was also a diagnosis of left medial tibial stress syndrome (shin splints), which had worsened since onset. Id. (4) 2018 and 2019 medical records showing a body mass index of 41.3 and the Veteran’s report of chronic left shin pain. Chronic right foot pain caused left foot pain because of how the Veteran had to walk. See May 2019 CAPRI. (5) The Veteran’s report that his left leg condition was incurred in or was the result of service, including duties and exposures. His post-service activity level was insufficient to have caused or contributed to the problem. See May 2019 Appellate Brief. (6) 2007 medical records showing knee arthritis. 2012 medical records showed “prox L leg pains more now where he had a large hematoma during bootcamp.” See April 2018 CAPRI. (7) 2013 medical records showing a body mass index of 38.2 and diabetic neuropathy. 2017 medical records showed leg cramps, which were possibly related to certain medications. Id. (8) 2008 medical records showing a body mass index of 36.5. See March 2018 CAPRI. (9) The Veteran’s report of the left leg injury during bootcamp. At the time, he was not going to complain more than he already had about the problem because he wanted to graduate bootcamp. The same was true with infantry school. When he went to get help for the problem the following year, his chain of command told him to suck it up. He was pressured to stay away from getting treatment because he couldn’t show weakness. He has lived with the pain for about 20 years and it had never gotten better. He currently had a discolored bruise, which was the same one he had during service, which never went away. The shin was fine before service and now it was not. See September 2015 Form 9. (10) The Veteran’s report that his physician told him that she believed his injury, which he had had for 20 years, might have been permanent nerve damage. The problem had worsened over time. See April 2015 NOD. (11) A 2015 medical record showing a diagnosis of a left shin splint. The Veteran reported that his old physician told him about two years prior that she thought the left leg injury was due to nerve damage. The Veteran reported that his left leg was purple in nature due to the service injury. The examiner stated that if there was evidence of a stress fracture or similar injury, that it would be more reasonable that the Veteran’s service problems persisted in a chronic manner. See March 2015 C&P Exam. (12) Service records from October 1995 showing a problem with the left lower extremity for two weeks. The Veteran reported slamming his leg against some logs. The assessment was a left lower extremity contusion. The Veteran apparently needed some time to heal. The Veteran had a high blood pressure reading. See January 2015 Medical Treatment Record. (13) Service records from April 1996 showing a Grade I left ankle inversion injury and that the Veteran had a limp. In November 1996, the Veteran had bilateral foot pain and left shin pain for seven days. The Veteran reported that the pain had been recurring since 1995. The contusion caused the initial shin pain. The assessment was cuboid syndrome, stress fracture versus contusion. In 1999, the Veteran had a rash on the left foot and left ankle with discoloration after being bitten by a bug. There may have been contact dermatitis. See July 2014 STR – Medical. (14) Service records showing weight problems. In August 1998, the Veteran had bilateral foot pain radiating eventually to the medial forefoot. This started two years prior. The Veteran had not been able to be treated due to constant training. The problem had worsened over that time. In October 1998, the Veteran had had bilateral foot pain for two months. In June 1999, the Veteran had more than a one-year history of bilateral mid foot pain. There was a diagnosis of recalcitrant peroneus brevis strains. In 2000, the Veteran had a high blood pressure reading. The treatment priority for most of the Veteran’s service was his right shoulder. Id. (15) Service records showing that the Veteran spent time in Southwest Asia. See July 2014 Military Personnel Record. (16) All other relevant lay and medical evidence. 5. Readjudicate the issue on appeal. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, 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.