Citation Nr: 21011253 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-24 624 DATE: March 1, 2021 REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for right leg disability is remanded. Entitlement to service connection for left leg disability is remanded. Entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for a left foot disability is remanded. REASONS FOR REMAND The Veteran had active military service from February 1971 to January 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the VA Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in December 2019, at which time the issues currently on appeal were remanded for additional development. In the December 2019 remand, the Board directed that the Veteran be afforded VA examinations to determine the nature and etiology of his back, right and left leg, and right and left foot disabilities. A review of the record shows that the directed examinations were conducted in March 2020. However, the opinions provided at that time are not adequate. Specifically, the examiner failed to provide the requisite secondary and aggravation opinions in connection with the Veteran’s service connection claims. Therefore, the Board finds that the development conducted does not adequately comply with the December 2019 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, addendum VA medical opinions should be obtained upon remand. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of any currently present back disability. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on the review of the record, the examiner should first identify all back disabilities present during the pendency of the claim, or proximate thereto. Then, for each back disability identified, the examiner should state whether a back disability clearly and unmistakably existed prior to the Veteran’s active service. In responding to this question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. If an identified back disability clearly and unmistakably existed prior to service, the examiner should provide an opinion as to whether the back disability was clearly and unmistakably NOT aggravated by the Veteran’s active service. If an identified back disability did NOT clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the back disability is etiologically related to the Veteran’s active service. In forming the requested opinions, the examiner should consider that the Veteran’s lay assertions alone are not a sufficient basis to determine that he clearly and unmistakably had a back disability that pre-existed entrance to active service. Further, the lack of medical treatment or diagnosis of a back disability during service alone is not a sufficient basis to determine that a back disability was clearly and unmistakably not aggravated during active service. The rationale for all opinions expressed must be provided. 3. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of any currently present right and left leg disability. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s right and left leg disability had its onset during active service, or is otherwise etiologically related to his active service. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right and left leg disability was caused or aggravated (chronically worsened) by the Veteran’s back disability. The rationale for all opinions expressed must be provided. 4. Then, return the claims file to a VA examiner with sufficient expertise for an addendum opinion to determine the nature and etiology of any currently present right and left leg disability. The claims file must be made available to and reviewed by the examiner. If a new VA examination is required, then one should be scheduled. Based on a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that the Veteran’s right and left leg disability had its onset during active service, or is otherwise etiologically related to his active service. Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right and left leg disability was caused or aggravated (chronically worsened) by the Veteran’s back disability. The rationale for all opinions expressed must be provided. 5. Confirm that VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 6. Then, readjudicate the appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.