Citation Nr: 1601901 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 09-16 044 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disorder, including a strain and degenerative disc disease. 2. Entitlement to service connection for a right shoulder disorder, including a supraspinatus tear and osteoarthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran served on active duty from October 2001 to August 2005. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran provided testimony in support of these claims at a hearing at the RO in San Antonio before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the hearing is of record. The Board subsequently, in August 2012 and again in September 2014, remanded the claims for further development. Unfortunately, even more development is required before deciding these claims on appeal, so the Board is again remanding them to the Agency of Original Jurisdiction (AOJ). VA processed this appeal entirely electronically using Virtual VA and the Veterans Benefits Management System (VBMS), which are paperless claims processing systems. Accordingly, consideration of this appeal must take into account these electronic records. REMAND The Board sincerely regrets the additional delay that will result from yet again remanding, rather than deciding, these claims, but has no discretion since there has not been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 27 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the Board a concomitant duty to ensure compliance with the terms of the remand); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board's August 2012 remand instructed that an updated VA Form 21-4142, authorizing VA to obtain and associate with the claims file copies of all confidential clinical records of the Veteran's treatment since 2005 by Dr. A.C., be obtained along with those records. A February 2013 Supplemental Statement of the Case (SSOC) sent from the Appeals Management Center (AMC) in Washington, DC, indicates that no response from the Veteran was received when mailed the VA Form 21-4142. However, a review of the claims file shows he did in fact submit two completed VA Form 21-4142s so that records from Dr. A.C., as well as the Veteran's chiropractor, R.L., could be obtained. These forms are date stamped as received in September 2012 at the Houston RO. Thus, it does not appear the AMC had notice of those forms and no effort therefore was undertaken to obtain the treatment records mentioned. In light of the Veteran submitting the release forms to obtain these additional treatment records that the Board specifically remanded to be obtained, the Board is obligated to again remand these claims to obtain these records. Unfortunately, however, as the forms were signed over three years ago, they are now outdated, so new VA Form 21-4142s must be provided to the Veteran. Consider also that it appears he has changed addresses since the most recent correspondences sent to him in 2014 and 2015 were returned as undeliverable. The AOJ therefore needs to first undertake efforts to contact him and/or his representative at his current address. Accordingly, these claims are REMANDED for the following still additional development and consideration: 1. Obtain the Veteran's current address; this may require contacting his representative since, as mentioned, the most recent correspondences sent to the Veteran in 2014 and 2015 were returned by the U. S. Postal Service as undeliverable. 2. If the Veteran's current address is obtained, have him complete and return updated VA Form 21-4142s authorizing VA to obtain and associate with the claims file copies of all confidential clinical records of his relevant treatment since 2005 - especially from Dr. A.C. and in 2011 from Dr. R.L. 3. If, and only if, records from Drs. A.C. and R.L. are received, return the claims file to the physician that evaluated the Veteran for the March 2015 VA compensation examination for supplemental opinions addressing this additional evidence. If for whatever reason that examiner is unavailable, provide another physician the file for this additional review that has the necessary qualifications to comment. After reviewing the additional evidence, the examiner should again opine on the following: A) What is the likelihood (unlikely, as likely as not, or very likely) the Veteran's right shoulder supraspinatus tear and osteoarthritis noted in the report of a September 2011 MRI are related or attributable to his military service -- especially to his and two other servicemen's assertions regarding a potentially relevant injury in 2003? B) What is the likelihood (unlikely, as likely as not, or very likely) the Veteran's lumbar degenerative disc disease and low back strain are related or attributable to his military service -- especially to his and two other servicemen's assertions regarding a potentially relevant injury in 2003? Explanatory rationale must be provided for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinions, he/she must state what reasons, with specificity, the question is outside the scope of a medical professional conversant in VA practices or why a definitive response is not possible or feasible. So merely saying he/she cannot respond will not suffice. 4. Ensure the opinion - if obtained - is responsive to the questions asked. If it is not, obtain all necessary additional information. 5. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied or are not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to respond to it before returning these claims to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).