Citation Nr: 21023841 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-08 373 DATE: April 21, 2021 REMANDED The issue of entitlement to service connection for a right leg condition, to include as due to service-connected residuals of frostbite of both feet, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1955 to December 1957. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, denied service connection for a right leg condition, claimed as poor circulation of the right leg. The Veteran disagreed with that denial and subsequently perfected an appeal to the Board. The procedural history of this case is a lengthy one that involves multiple actions by the Board and an appeal to and remand from the United Stated Court of Appeals for Veterans Claims (Court). As the procedural history has been detailed at length in the prior actions in the appeal, it will only be repeated herein as needed to explain the state of the matters currently before the Board. In an August 2017 decision, the Board denied service connection for a right leg disability, to include as secondary to service-connected residuals of frostbite of both feet. Thereafter, the Veteran filed an appeal to the Court and in August 2018, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by the Veteran’s then-representative and VA’s General Counsel. In the Joint Motion, the parties agreed that the Board had erred in relying on two opinions from the Veterans Health Administration (VHA), which opinions were found to be inadequate to rely upon for adjudication purposes, as one opinion failed to discuss the Veteran’s right leg disability and the other opinion addressed only arthritis. The parties agreed that remand was necessary for the Veteran to be afforded a new VA examination, with opinion, addressing whether the Veteran’s service-connected frostbite residuals had caused or aggravated his claimed right leg circulatory condition. In order to comply with the terms of the parties Joint Motion, the Board, in February 2019, July 2020 and November 2020, remanded, for further development, the issue of service connection for a right leg disability. In these actions, the Board directed that as part of the opinion to be obtained on remand, the VA examiner was to address a May 2015 private medical opinion. Unfortunately, the matters must again be remanded for further action by the agency of original jurisdiction (AOJ) even though such will, regrettably, further delay an appellate decision on this matter. In the instant case, the Veteran contends that his right leg disability is secondary to his service-connected residuals of frostbite of the bilateral feet. As noted, the matter was most recently remanded in November 2020. In that action, the Board directed that the AOJ was to obtain an opinion regarding the likelihood that the Veteran has a right leg disability, to include a circulatory disability, that is related to service or caused or aggravated by service-connected residuals of frostbite of the bilateral feet. The Board noted that the VA examiner was to review and “specifically address the May 2015 private opinion by Dr. G.W.”. In January 2021, a VA clinician reviewed the claims folder and stated that the Veteran does not have a right leg disability. The clinician then, however, went on to noted that the Veteran does have bilateral leg edema and right knee degenerative joint disease. The clinician opined that the bilateral leg edema is “most likely due to [the Veteran’s] comorbidities” and that the right knee degenerative joint disease is “unlikely related to the cold injury.” A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, when the Secretary provides the claimant with a VA medical examination or opinion, he must ensure that the examination or opinion provided is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board finds that the January 2021 medical opinion is not compliant with the terms of the Board’s remand in that the examiner did not address Dr. G.W.’s May 2015 medical opinion. Notably, in that opinion, Dr. G.W. indicated that the Veteran’s frostbite in his feet had caused “chronic degenerative problems in his lower extremities.” Given that Dr. G.W.’s statement contradicts that of the January 2021 VA clinician, it must be addressed. Furthermore, although the clinician opined that the Veteran’s bilateral leg edema was most likely due to the Veteran’s comorbidities, the clinician provided no rationale for that opinion. The clinician also failed to sufficiently address the aggravation prong of secondary service connection. Accordingly, as the opinion obtained on remand is neither adequate to rely upon for adjudication purposes, nor compliant with the terms of the Board’s prior remand actions, another remand is necessary. See Barr and Stegall, both supra. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate physician regarding the nature and etiology of the Veteran’s right leg disability. The chosen physician should clearly identify all diagnosed disabilities related to the right lower extremity. The clinician should address specifically whether the Veteran’s right leg edema is related to circulatory problems and, if so, whether such problems are attributable to his service-connected frostbite. The clinician should then address the following inquiries: (a) Determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any disability of the right leg/right lower extremity, to include a circulatory disability, had its onset during, or is otherwise related to, the Veteran’s military service. (b) Determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disability was (1) caused by or (2) aggravated by service-connected residuals of frostbite of the bilateral feet. Complete, clearly stated rationale for the conclusions reached must be provided. The physician is reminded that merely stating that it is his or her opinion that a right leg condition was not caused or aggravated by the service-connected frostbite residuals is not sufficient. An explanation is required that considers the record and pertinent medical principles and the physician’s rationale should include citation to pertinent evidence and/or medical principles relied upon to form that opinion. Additionally, the physician is asked to review and specifically address the May 2015 private opinion by Dr. G.W. that the Veteran’s frostbite in his feet had caused “chronic degenerative problems in his lower extremities.” If the physician disagrees with this opinion, the physician must clearly state so and provide specific reasons for his/her disagreement. 2. After completing the requested actions, and any additional notification and/or development warranted adjudicate the remaining claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. Before readjudicating the claim, the AOJ is directed to review to opinion obtained on remand and ensure that it complies with the terms of the Board’s remand directives. The AOJ must ensure that opinion contains a specific discussion of Dr. G.W.’s May 2015 opinion, to include any reasons for disagreeing with the opinion set forth therein. If it does not, the AOJ must return the opinion report to the physician for corrective action. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.