Citation Nr: 21041335 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 15-03 260 DATE: July 8, 2021 REMANDED Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for a bilateral foot disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from February 18, 1987 to June 8, 1987; January 27, 1991 to June 15, 1991; and January 2005 to May 2006; with additional periods of reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In August 2018, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. 1. Entitlement to service connection for a cervical spine disorder is remanded. 2. Entitlement to service connection for a lumbar spine disorder is remanded. 3. Entitlement to service connection for neuropathy of the bilateral lower extremities is remanded. 4. Entitlement to service connection for a bilateral foot disorder is remanded. Unfortunately, another remand is required as there has not been substantial compliance with the directives of the previous Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1997) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). In this regard, the August 2018 remand directed the RO to verify the specific dates of the Veteran's various periods of active duty. Although a copy of the Veteran's service history was obtained, these documents only reflect how many days the Veteran served throughout the year rather than the exact dates of service. As the specific dates during which the Veteran was called to active duty are central to her claim for service connection, the Board finds that unfortunately, remand is again required. Additionally, the Veteran underwent VA examinations in November 2020 to address her claims. Following in-person examinations, the November 2020 VA examiner opined that the Veteran's neck disorder, low back disorder, lower extremity neuropathies, and bilateral foot disorder were less likely than not related to her active duty service. In reaching these opinions, the examiner rationalized that there were no complaints of chronic disorders in the Veteran's service treatment records. The examiner also noted that the Veteran was diagnosed with degenerative arthritis of the neck, back, and feet after her active duty service. The Veteran has stated and testified that she did not seek medical attention for her neck, back, lower extremity, and feet symptomatology as she was concerned about potential backlash. She also stated she did not want to have someone else have to do more work if she was medically restricted. See Undated Statement, received by VA May 9, 2014; February 2018 Hearing Transcript. Given the above, the Board finds the November 2020 opinions inadequate, as each merely relies on the absence of evidence in the Veteran's records. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate when the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). Additionally, the examiner did not opine whether the Veteran's later diagnosed degenerative arthritis of the neck, low back, and feet were related to her active duty service. On remand, an addendum opinion should be obtained, as set forth below. Finally, as this matter is being remanded, the Veteran's updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran's updated treatment records, from November 2020, forward. 2. Verify and specifically enumerate (month, day, year) all periods of active duty while the Veteran was in Army National Guard of Alabama and Air National Guard of Alabama from 1987 through 2009. Contact all appropriate sources in order to verify these dates. All verified dates of service and all responses received should be documented in the claims file. Prepare a formal finding memorandum detailing dates of active service, ACDUTRA, and INACDUTRA. 3. Ensure that the Veteran's complete service treatment records from all periods of service have been obtained. 4. Thereafter, return the claims file to the November 2020 VA examiner for a supplemental opinion. If that examiner is not readily available, a VA opinion may be obtained by another medical professional with an appropriate background or expertise. The Veteran should not be scheduled for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) unless deemed necessary by the VA medical professional rendering an opinion on this claim. The entire claims file, to include a copy of this REMAND must be made available to the examiner(s) in conjunction with the opinions. The examiner(s) must confirm in the examination reports that he or she has reviewed the folder in conjunction with the examinations. The examiner(s) should elicit a fill history from the Veteran. After reviewing the file, eliciting a full medical history from the Veteran, conducting an examination of the Veteran, performing any clinically indicated diagnostic testing, the examiner(s) must provide answers to the following: (a) Cervical Spine (i) Identify, by diagnosis, each cervical spine disorder found to be present, to include degenerative disc disease. (ii) For each cervical spine disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to any incident of service. (b) Low Back (i) Identify, by diagnosis, each low back disorder found to be present, to include degenerative disc disease. (ii) For each low back disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to any incident of service. (c) Bilateral Feet (i) Identify, by diagnosis, each foot disorder found to be present, to include degenerative arthritis. (ii) For each foot disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to any incident of service. (d) Lower Extremity Neuropathy (i) Identify, by diagnosis, each lower extremity disorder found to be present, to include neuropathy. (ii) For each lower extremity disorder found, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during active service or is related to any incident of service. (iii) If the answer to (ii) is no, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each found lower extremity disorder was either (1) caused by, or (2) aggravated by the Veteran's neck or low back disorder. In providing the requested opinions, the examiner must consider and address the Veteran's statements regarding the onset and continuity of her in-service symptomatology as well as her statements as to why she did not seek medical treatment during active duty service. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of her current disabilities, this should be noted. Stated another way, do the Veteran's reports about her symptoms align with how the currently diagnosed disabilities are known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? (Continued on the next page) The examiner(s) must provide a complete rationale for all opinions provided. If the examiner(s) is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, Associate 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.