Citation Nr: 21042629 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-35 173 DATE: July 13, 2021 REMANDED Entitlement to service connection for a left leg condition is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1995 to March 2002. This matter originally came before the Board of Veterans' Appeals (Board) from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board for further development in May 2019 and was remanded again in February 2021. The Veteran contends that his left leg condition is due to a contusion he incurred during his military service. He states that he has continued to have pain in the left leg since that injury and that his current disability is directly related to that injury. The Veteran also maintains that his service-connected conditions, including obesity due to those conditions, caused or aggravated his left leg condition. Entitlement to service connection for a left leg condition is remanded The February 2021 Board remand explained that the record indicates the Veteran may have conditions associated with his left leg other than a shin splint. The remand specifically noted the possibility of nerve damage associated with the Veteran's contusion in service, and that issue must be addressed. The remand directed that all left leg disabilities must be identified, a nexus opinion should be provided for each identified left leg disability, a rationale should be given for each opinion, and specified information that the examiner must consider in providing the opinions. In May 2021, the Veteran was afforded a VA left leg examination, per the February 2021 Board remand. The examiner only identified a diagnosis of shin splints, noting a left knee hyperpigmented contusion, and provided no rationale for the opinion. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the examiner failed to consider the issue of whether the Veteran's in-service left leg contusion is associated with left leg nerve damage. As such, the opinion did not comply with the Board remand directives. A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Additionally, although the examiner indicated that all records were reviewed, the examiner did not address the multiple references to information in the Board remand that was required to be considered in the opinion. Therefore, vital evidence in the record appears to have not been considered, despite the specific Board directives. See Stegall; see also Nieves-Rodriguez. The Board also notes that the May 2021 examiner's opinion was based wholly on a lack of treatment records. Citing that there are no treatment records suggesting the Veteran continued to have left leg pain in-service. However, a lack of evidence cannot be corroborating to conclude that there is no relationship between the Veteran's current disability and his military service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Furthermore, the examiner did not seriously consider the Veteran's lay testimony that he has continued to have pain in his leg since his injury in the service, nor the explanation for why he did not report his continuing let leg pain during his military service. See September 2015 VA Form 9. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). A Veteran's lay statements can provide evidence of symptoms that should be evaluated by an examiner. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examiner also opined that the Veteran's left leg condition is less likely than not caused or aggravated by his service-connected conditions because those conditions are anatomically unrelated to the left tibia bone and cannot cause or aggravate the Veteran's left shin splint. However, the examiner did not thoroughly address whether the Veteran's right foot pes planus caused or aggravated the left leg condition, despite the report of left shin pain in-service being accompanied by bilateral foot pain. The Board also notes, that upon remand it would be reasonable for the examiner to address whether the left leg condition was at least as likely as not caused or aggravated by the service-connected right foot pes planus due to overcompensation or shifting of weight onto the left leg because of the right foot condition. The February 2021 Board remand directed the examiner to address whether the Veteran's left leg condition is caused or aggravated by his obesity. The May 2021 VA examiner opined that it is at least as likely as not that the Veteran's obesity was caused or aggravated by his service-connected conditions, and that it is at least as likely as not that the obesity caused or aggravated the Veteran's left leg condition. However, no opinion was provided addressing whether the left leg condition would not have occurred but for the obesity caused by the service-connected disability. As such, an opinion regarding the third requirement for service-connection due to obesity as an "intermediate step" is necessary. See VAOPGCPREC 01-17 (Jan. 6, 2017). See also Walsh v. Wilkie, 32 Vet. App. 300 (2020) (intermediate step includes secondary service connection as well as service connection by aggravation). Service connection may be granted on a secondary basis where the claimed disability would not have occurred but for obesity caused or aggravated by a service-connected disability. Id.; 38 C.F.R. § 3.310. The Board also notes that the May 2021 examiner provided a Gulf War assessment. However, as discussed above, the examiner did not satisfactorily address diagnosed conditions of the left leg, nor the specific evidence identified in the February 2021 Board remand. The examiner also did not recognize the symptom of pain that has clearly been stated by the Veteran. As such, the Gulf War examination is inadequate, and remand is warranted for further examination and opinion. . The matters are REMANDED for the following action: 1. Associate with the claims file any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be scheduled for an examination with an appropriate VA clinician, different from a prior VA examiner, for the issuance of a medical opinion as to the nature and etiology of his left leg condition. The clinician should thoroughly review the Veteran's entire claims file, including a copy of this Board Remand and the February 2021 Board remand. The examiner must be advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The examiner should provide the following: (a) Identify all left leg related disabilities existing at any point during the pendency of the appeal (i.e. since January 2015), even if they are currently asymptomatic or have resolved during the pendency of the appeal, to include any condition associated with left lower extremity nerves. (b) For each identified disability, opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran's service. (c) For each identified disability, opine whether it is at least as likely as not (a 50 percent or greater probability) that the disability is/was caused by, or aggravated by, any or all of the Veteran's service-connected disabilities (including any medications taken for the service-connected disabilities), to include due to overcompensation or shifting of weight related to the service-connected right pes planus. (d) Opine whether it is at least as likely as not (50 percent or greater) that a service-connected disability (e.g., right pes planus) caused or aggravated his obesity, and if so, is it at least as likely as not that the Veteran's obesity caused or aggravated a diagnosed left leg disability? The term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Schedule an appropriate VA Gulf War examination for the Veteran's left leg disabilities. Following a review of the claims file and a copy of this Remand, the examiner is requested to furnish an opinion with respect to the following: (a) Identify any diagnosed left leg conditions and indicate the Veteran's symptoms. Determine whether the Veteran's left leg symptoms are attributable to a known clinical diagnosis or a chronic multi-symptom illness of partially understood etiology and pathophysiology. (b) For any symptoms that are attributable to a known clinical diagnosis or a chronic multi-symptom illness of partially understood etiology and pathophysiology, is it at least as likely as not (a 50 percent or greater probability) that the disability is related to the Veteran's service, to include conceded environmental hazard exposure in Southwest Asia? (c) For any symptoms that are not attributable to a known clinical diagnosis or a chronic multi-symptom illness of partially understood etiology and pathophysiology, does the Veteran have objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, manifested by identified symptoms that have existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period? A "medically unexplained chronic multi-symptom illness" is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. A complete rationale for all opinions offered should be provided. Address the Veteran's documented history and assertions. All necessary tests and studies should be conducted. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should provide an explanation stating why. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is due to the limits of the medical community's knowledge or the limits of the examiner's medical knowledge. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). B. CHATTERJEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.