Citation Nr: 21012294 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-46 852 DATE: March 4, 2021 REMANDED Entitlement to service connection for a disability manifested by pain of the lower extremities (claimed as joint pain), to include left thigh pain, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from May 1970 to January 1972, including service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the issues of entitlement to service connection for a heart disability, a skin condition, a back disability and a disability manifested by pain of the lower extremities (claimed as joint pain), to include left thigh pain. These issues were again before the Board in August 2020, at which time the Board denied the claim for service connection for a heart condition, granted the claim for service connection for a skin condition, and again remanded the matters of service connection for a back disorder and for a disability manifested by pain of the lower extremities (claimed as joint pain). In October 2020, the RO issued a rating decision granting service connection for a back disability. That issue, therefore, is no longer before the Board. The matter of whether service connection is warranted for a disability manifested by pain of the lower extremities (claimed as joint pain) is the only issue remaining within the Board’s jurisdiction. Although the Board sincerely regrets further delay, a remand is again necessary as the RO did not substantially comply with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). In September 2018, the Board explicitly found that the severity of the Veteran’s pain of the lower extremities caused functional impairment sufficient to constitute a disability for VA purposes despite the absence of a clinically diagnosed condition. See Saunders v. Wilkie, 886 F.3d 1356, 1365 (Fed. Cir. 2018). The Board remanded the matter to obtain a medical opinion as to the etiology of the Veteran’s disability manifested by pain of the lower extremities (claimed as joint pain), to include left thigh pain. Following the remand, the Veteran was afforded a VA examination in November 2019, but the examiner did not provide an opinion as whether the Veteran’s current disability is related to the thigh pain documented in his service treatment records in March and April 1971, or secondary to his now service-connected back disability. In August 2020, the Board again remanded the matter for an adequate opinion. In October 2020, the Veteran was afforded another VA examination in this matter. When asked to provide an opinion on the etiology of the Veteran’s disability manifested by pain of the lower extremities (claimed as joint pain), to include left thigh pain, the clinician recognized the in-service complaints, but indicated that “there is no objective evidence to support a specific current or previous diagnosis.” Again, the Board has already found, under Saunders, that the Veteran has a disability for VA purposes. This opinion, therefore, is inadequate and is not in compliance with the prior Board directives. Additional remand is, therefore, necessary. See Stegall, 11 Vet. App. 268; also see Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. Provide access to the Veteran’s claims folder to a clinician for the purposes of obtaining a medical opinion on the nature and etiology of the Veteran’s current disability manifested by pain of the lower extremities (claimed as joint pain), to include left thigh pain. The need for an examination is left to the discretion of the clinician. Initially, the clinician providing this report must recognize that pain severe enough to cause functional impairment is a disability for VA purposes, even if not attributed to a clinically diagnosed condition. The Board has found that the Veteran’s pain of the lower extremities is severe enough to cause functional impairment. Thus, the question in this case is not whether a current disability exists, as that has been established. The question pertains to the etiology of this disability. After reviewing the record, the clinician should provide an opinion, with supporting rationale, as to the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s disability manifested by pain of the lower extremities (claimed as joint pain), to include left thigh pain, had its inception during the Veteran’s active service or is otherwise causally related to his service. The examiner must acknowledge and consider the service treatment records showing pain and swelling in the left thigh in March and April 1971. (b) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s current disability manifested by pain of the lower extremities (claimed as joint pain), to include left thigh pain, is proximately due to his service-connected low back pain with degenerative arthritis disability? (c) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran’s current disability manifested by pain of the lower extremities (claimed as joint pain), to include left thigh pain, is being aggravated (worsened) by his service-connected low back disability? In providing the preceding opinions, the clinician should explain whether there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability. Stated another way, do the Veteran’s reports about his symptoms align with how disabilities manifested by pain of the lower extremities are known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? The addendum report should include reasons for any opinion expressed. If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person’s knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, 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.