Citation Nr: 21027706 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-03 951 DATE: May 6, 2021 REMANDED Entitlement to service connection for deep vein thrombosis (DVT) of the left lower extremity, to include as secondary to a service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from May 1963 to February 1985. This appeal to the Board of Veterans' Appeals (Board) is from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this claim back to the RO in May 2018 and again in May 2020 for further development and consideration including most recently to obtain any outstanding VA or private treatment records relevant to this claim and then for supplemental medical comment concerning whether the Veteran's left lower extremity DVT is attributable to his service, either in the sense that it incepted during his service or was caused or is aggravated by his service-connected left knee disability. Still more development of this claim is required, however, so the Board is again remanding it back to the RO (Agency of Original Jurisdiction (AOJ)). Entitlement to service connection for DVT of the left lower extremity, including as secondary to a service-connected left knee disability, is remanded. A remand by the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268 (1998). And it is incumbent on the Board to ensure compliance; this obligation is mandatory, not discretionary. Following the Board's most recent May 2020 remand of this claim, the case file was forwarded to a VA compensation examiner for supplemental medical comment regarding whether the DVT of the Veteran's left leg was incurred during his service or is related to his service including aggravated by his service-connected left knee disability. But the Board finds the supplemental medical opinion provided is inadequate, so still more medical comment is needed before deciding the appeal of this claim. Specifically, in his opinion the examiner cited December 2016 evidence against finding entitlement to service connection for the Veteran's DVT; a Statement of the Case (SOC) was issued in December 2016 continuing to deny this claim, but a rating decision or SOC or other adjudication is not evidence and should not be considered by the examiner when formulating their opinion regarding whether there is a correlation ("nexus") between this claimed disability and the Veteran's service. Also, when offering an opinion on whether the Veteran's service-connected left knee disability aggravated his DVT, the examiner indicated the DVT clearly and unmistakably existed prior to the Veteran's service but offered no rationale supporting this conclusion. Thus, still more medical comment is needed to address these failings. Additionally, in the Informal Hearing Presentation (IHP), the Veteran's representative has raised the still additional issue of whether the Veteran's DVT was caused or is aggravated by his service-connected coronary artery disease (CAD), status post myocardial infarction (heart attack) and first degree atrioventricular block (i.e., ischemic heart disease (IHD)). So medical comment also is needed concerning this other possibility. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Again forward the Veteran's claims file to a qualified medical examiner for still more comment concerning the origins of the DVT of his left lower extremity. Whether the Veteran needs to be reexamined to provide this additional comment is left to the discretion of the examiner. The examiner is specifically asked to respond to the following questions: (a) Is at least as likely as not (i.e., probability of 50 percent or greater) the left lower extremity DVT onset during the Veteran's several years of service from May 1963 to February 1985 or is etiologically related to his service, including to any left leg symptoms or conditions that were treated during his service? To this end, the examiner must address the arguments raised by the Veteran's representative in the April 2018 Informal Hearing Presentation, namely, that the Veteran's knee symptoms in service of swelling and pain were symptoms of DVT. (b) Is the Veteran's left lower extremity DVT at least as likely as not (probability of 50 percent or greater) alternatively caused OR aggravated by his service-connected left knee disability OR service-connected coronary artery disease, status post myocardial infarction and first-degree atrioventricular block? (c) If, instead, as the most recent VA compensation examiner suggested, the DVT of the Veteran's left lower extremity clearly and unmistakably pre-existing his service, there must be more explanation of why it did and why there also is clear and unmistakable evidence it was not aggravated during or by his service meaning not worsened beyond its natural progression Rationale for the responses thus is essential, regardless of whether favorable or unfavorable to the claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. If the examiner is unable to provide responses without resorting to mere speculation, he/she must discuss why this is so and what, if any, additional evidence would be necessary before a more definitive opinion could be rendered. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.