Citation Nr: 21032843 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 11-20 546 DATE: May 28, 2021 REMANDED Entitlement to service connection for bilateral upper extremity (BUE) neuropathy is remanded. Entitlement to service connection for bilateral lower extremity (BLE) neuropathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1957 to April 1959. This case comes before the Board on appeal of a December 2009 rating decision. This case was previously before the Board in April 2020, where the issues on appeal were remanded for further evidentiary development. As will be discussed below, a Stegall remand is warranted as the medical opinion provided failed to follow the Board's instructions. The Board notes that the Veteran's service connection claim for a cervical spine disability was granted in a February 2021 rating decision. Therefore, as the service connection claim has been granted, it is resolved and no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). 1. Entitlement to service connection for bilateral upper extremity (BUE) neuropathy is remanded. 2. Entitlement to service connection for bilateral lower extremity (BLE) neuropathy is remanded. In the April 2020 Board remand, the Board directed the AOJ to obtain a medical opinion on whether the Veteran's bilateral upper and lower extremity neuropathy was caused or aggravated by his service-connected disabilities; specifically, his musculoskeletal disabilities. In seeking a medical opinion, the examiner was asked to discuss or reconcile the conflicting medical opinion from Dr. N.A.O from September 2009. In that regard, in the November 2020 medical opinion, Dr. A.SV. opined that the Veteran's BUE/BLE neuropathy was not caused or aggravated by his service-connected disabilities. Dr. A.SV. reasoned that there was no medical information in VA medical records or service treatments records (STRs) that support the claimed conditions. However, contrary to the Board directive, Dr. A.SV. failed to discuss the medical opinion from Dr. N.A.O. which contradicts the negative opinion. Moreover, Dr. A.SV. medical opinion is inadequate not only because he failed to discuss pertinent evidence from Dr. N.A.O. but did not account for the Veteran's lay statements and used the lack of medical evidence in the STRs to support his opinion. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). In light of the above, it is apparent that the AOJ failed to comply with the Board's January 2018 and April 2020 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). Accordingly, on remand an addendum opinion should be provided to determine the nature and etiology of the Veteran's BUE/BLE neuropathy. The matters are REMANDED for the following action: 1. Obtain all relevant outstanding VA treatment records, and any private treatment records identified by the Veteran. All records and/or responses received should be associated with the claims file. 2. After all outstanding treatment records have been associated with the claims file, obtain a VA addendum medical opinion to determine the nature and etiology of the Veteran's BUE/BLE neuropathy. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. The record, including a copy of this remand, must be made available and reviewed by the examiner. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's BUE/BLE neuropathy had its onset during service or is otherwise causally related to any event or circumstance of the Veteran's service. (b.) Whether it is at least as likely as not that the Veteran's BUE/BLE neuropathy is caused or aggravated by his service-connected disabilities (which include right knee disability, left knee disability, left ankle disability, right ankle disability, lumbar spine disability, and bilateral hip disabilities). In providing the opinion, the examiner must consider the September 2009 private medical opinion from Dr. N.A.O. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). (Continued on the next page) 3. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for all opinions given. If after consideration of all pertinent factors it remains that the opinion sought cannot be given without resort to speculation, it should be so stated and the provider must (to comply with governing legal guidelines) explain why the opinion sought cannot be offered without resort to speculation. 4. After undertaking any additional development deemed necessary, the AOJ must readjudicate the claims on appeal. If any claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umo, 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.