Citation Nr: 21039659 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-06 202 DATE: July 1, 2021 REMANDED Entitlement to service connection for a right lower extremity disorder is remanded. Entitlement to service connection for a left lower extremity disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1980 to August 1984, and from October 1985 to September 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). These issues were previously before the Board in December 2017, December 2019, and August 2020, when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. 1. Entitlement to service connection for a right lower extremity disorder is remanded. 2. Entitlement to service connection for a left lower extremity disorder is remanded. Remand is required for substantial compliance with the August 2020 Board remand directives, and for a new VA examination. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The August 2020 Board remand instructed the RO to obtain any outstanding service treatment records (STRs) and private treatment records (PTRs), and provide the Veteran with a new VA examination. Additional STRs were added to the Veteran's claims file in December 2020, and it is indicated on VA Form DD 2963 STR Transfer or Certification that no further records exist. The Veteran was notified of this determination in a February 2021 letter. In January 2011, the RO sent the Veteran a letter asking that they identify and authorize for release any outstanding PTRs. The Veteran did not reply to this letter. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate by responding to the RO's request for authorization to request records to the full extent in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA's duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). As these matters are being remanded herein, the Veteran will be provided another opportunity to identify and authorize these records for release. The Veteran underwent a new VA Peripheral Nerves Conditions examination in March 2021 where the examiner provided a negative nexus opinion. The examiner explained that the Veteran does not have a peripheral nerve defect, but rather it is most likely a radiculopathy defect from what appears to be a lower back condition. However, the examiner declined to provide an opinion on the radiculopathy as appropriate testing, to include MRI and EMG imaging, was needed to further evaluate and diagnose it correctly, and that this would be outside the scope of the exam. The RO was instructed to provide an examination to identify any diagnoses that pertain to the Veteran's bilateral lower extremity disorder, and while they provided the Veteran with a Peripheral Nerve Conditions examination, when the examiner identified a possible diagnosis of radiculopathy, the examiner did not take any steps to properly evaluate the radiculopathy, and the RO did not attempt to schedule the Veteran for another examination to do so. Specifically, the August 2020 Board remand instructed that any indicated evaluations, studies, and tests, which may or may not include EMG studies, to the extent deemed necessary by the examiner, should be accomplished. Here, the examiner opined that MRI and EMG testing should be done, but did not actually do so. Additionally, the examiner was instructed that if they did not find any diagnosis, that they must state whether the Veteran's symptoms result in any functional impairment of earning capacity. Pain resulting in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). Further, the holding in Saunders is not limited to pain alone, but rather, the definition of "disability" in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes any condition that results in functional impairment of earning capacity. Martinez-Bodon v. Wilkie, No. 18-3721 (Fed. Cir. 2020). Here, the examiner noted no diagnosis of peripheral neuropathy, and while they noted a possible diagnosis of radiculopathy, as noted above they indicated that further testing would be needed to confirm that diagnosis; however, the examiner did not actually address whether any symptoms of the bilateral lower extremities resulted in any functional impairment that might constitute a disability. Finally, the examiner was instructed to address the Veteran's in-service complaints of a tingling sensation and discomfort in the left anterior pelvis, as found in November 2000 STRs, and throughout the record generally. The examiner did not address these complaints. Accordingly, remand is required for a new VA examination. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matters are REMANDED for the following action: 1. Contact the Veteran and afford them the opportunity to identify by name, address and dates of treatment or examination any relevant medical records specifically, private EMG imaging referenced in January 2020 VA examination. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and their representative. 2. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of the bilateral lower extremities, to include a possible diagnosis of radiculopathy. The entire claims file must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests, which may or may not include EMG studies, to the extent deemed necessary by the examiner, should be accomplished. An explanation for all opinions expressed must be provided. (a) First, the examiner must identify all diagnoses of record of the bilateral lower extremities. (b) Additionally, the examiner must provide an opinion regarding whether there is a bilateral lower extremities disorder that has resulted in functional impairment of earning capacity. The examiner is reminded that the definition of disability includes any condition that results in functional impairment of earning capacity. (c) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the bilateral lower extremities disorder had onset in, or is otherwise related to, active military service. (d) The examiner must specifically address: 1) the note of tingling sensation after prolonged marching in May 1980 STRs; 2) the Veteran's in-service complaints of a tingling sensation and discomfort in the left anterior pelvis, as found in November 2000 STRs; 3) the May 2010 statement that the tingling in the legs began in 1980; and 4) the March 2021 VA medical opinion indicating a possible diagnosis of radiculopathy. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.