Citation Nr: 21026263 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 19-25 638 DATE: April 30, 2021 REMANDED Entitlement to service connection for a right leg disability, to include as secondary to service-connected bilateral flatfeet, is remanded. Entitlement to service connection for a left leg disability, to include as secondary to service-connected bilateral flatfeet, is remanded. REASONS FOR REMAND The Veteran had active military service from August 1958 to August 1961. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in September 2019 and October 2020, at which time the issues currently on appeal was remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection – Right and Left Leg Disabilities The Board finds that additional development is required before the claims on appeal are decided. The Veteran has contended that his pre-existing right and left leg disabilities were aggravated by his active service. He admitted that he experienced leg cramps prior to service, but reported that they were not severe. He recalled that a 500-mile forced march prevented his ability to sleep because of leg cramps and the cramps continued to worsen since service. Alternatively, he asserted that his right and left leg disabilities were secondary to his service-connected bilateral flatfeet. He submitted an article supporting his belief that some people were particularly susceptible to leg cramps due to flat feet and other structural problems. Service treatment records (STRs) documented that the Veteran had cramps in his legs with swelling upon enlistment in May 1958. Further, the Veteran had been unable to straighten his left leg with pain for four days in July 1961. Pursuant to the Board’s October 2020 remand, the Veteran was last afforded a VA examination in November 2020. However, the Board finds that the development conducted does not adequately comply with the remand directives. Specifically, the examiner diagnosed the Veteran with bilateral acute, quiescent muscle spasms of the calf. However, s/he did not resolve the underlying matter as to whether the Veteran’s diagnosed disability clearly and unmistakably pre-existed his active service. Rather, s/he misapplied the standard. 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). Further, the examiner did not address the July 1961 STR notation of left leg pain and the article submitted by the Veteran post-examination. As such, an additional VA medical opinion is warranted. Additionally, current treatment records should be identified and obtained before a decision is made in this appeal. 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 the Veteran’s right and left leg disabilities. 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 first identify all right and left leg disabilities present during the pendency of the claim, or proximate thereto. Then, for each right and left leg disabilities identified, even if currently resolved, the examiner should state whether the right and left leg disabilities clearly and unmistakably existed prior to the Veteran’s active service. In responding to that question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. Additionally, the Veteran’s lay statements alone are not sufficient upon which to support a finding that a disability clearly and unmistakably preexisted service. If any identified right and left leg disabilities clearly and unmistakably existed prior to service, the examiner should provide an opinion as to whether the right and left leg disabilities were clearly and unmistakably NOT aggravated by the Veteran’s active service. The examiner must specifically address the following: May 1958 STR notation of cramps in his legs with swelling, July 1961 STR notation that the Veteran could not straighten his left leg with pain for four days, and the Veteran’s submitted article. If any identified right and left leg disabilities 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 right and left leg disabilities are etiologically related to the Veteran’s active service. The examiner must specifically address the following: May 1958 STR notation of cramps in his legs with swelling, July 1961 STR notation that the Veteran could not straighten his left leg with pain for four days, and the Veteran’s article submission. If any identified right and left leg disabilities 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 Veteran’s right and left leg disabilities were caused or aggravated (chronically worsened) by his service-connected bilateral flatfeet. The examiner must specifically address the following: May 1958 STR notation of cramps in his legs with swelling, July 1961 STR notation that the Veteran could not straighten his left leg with pain for four days, and the Veteran’s article submission. The rationale for all opinions expressed must be provided. 3. Confirm that all VA medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. 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.