Citation Nr: 21031757
Decision Date: 05/24/21	Archive Date: 05/24/21

DOCKET NO. 13-31 406A
DATE: May 24, 2021

REMANDED

Entitlement to service connection for a neck disability, to include as secondary to service-connected left shoulder tendonitis, is remanded.   

Entitlement to service connection for a left knee disability, to include as secondary to service-connected bilateral pes planus, is remanded.

REASONS FOR REMAND

The Veteran had active military service in the United States Marines Corps from August 1992 to December 1993.  These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).  This case was previously before the Board in February 2017 and July 2019, at which time the issues currently on appeal were remanded for additional development.  It has now been returned to the Board for further appellate action.

Pursuant to the July 2019 Board remand, the Veteran was last afforded VA examinations for his neck and left knee disabilities in December 2020.  However, the Board finds that the development conducted does not adequately comply with the remand directives.  Specifically, the examiner misapplied the standard for secondary aggravation of the Veteran's claimed disabilities by his service-connected disabilities.  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).  Therefore, addendum VA medical opinions are warranted.

The matters are REMANDED for the following action:

1. 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 neck 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 (50 percent or better probability) that the Veteran's neck disability was caused or aggravated (worsened) by his service-connected left shoulder tendonitis. 

The rationale for all opinions expressed must be provided.

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 left knee 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 (50 percent or better probability) that the Veteran's left knee disability was caused or aggravated (worsened) by his service-connected bilateral pes planus. 

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.

 

 

R. Erdheim

Acting 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.