Citation Nr: 1800938 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 11-28 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD RLBJ, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from October 1970 to October 1972. This matter arrives before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Salt Lake City, Utah. (Hereinafter, the Agency of Original Jurisdiction (AOJ).) In February 2014, the Veteran presented sworn testimony before a Veterans Law Judge. The Veteran was notified that the Veterans Law Judge who presided over the hearing was no longer with the Board. In June 2017, the Veteran indicated that he did not want another Board hearing. The transcript for the Veteran's February 2014 testimony is found in the Legacy Content Manager (LCM). The Veteran's entire claims file is found in the LCM and/or Veterans Benefit Manager System (VBMS) databases. In August 2017, the Board remanded the appeal for further development. The case has since been returned to the Board for appellate review. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999). However, failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In the present case, the AOJ did not substantially comply with the development requested in the Board's earlier August 2017 remand, with regard to both issues on appeal. Specifically, the AOJ did not substantially comply with instructions #1 and #2 of the August 2017 Board remand. That is, the Veteran underwent VA examination(s) of his low back and right shoulder disabilities in September 2017 before his treatment records from Salt Lake City were associated with the claims file. A review of the examination report notes that the Veteran's electronic claims folder was reviewed in conjunction with the examination. However, the examiner did not indicate that the Veteran's medical records maintained by the Veterans Health Administration (VA) were reviewed. The Veteran's claims folder indicates that shortly after completion of the examinations, additional VA outpatient treatment records were associated with the claims folder. As it is unclear if the examiner had access to, or reviewed these records, a remand is required to ensure compliance with the Board's previous, August 2017 remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should identify all available records of treatment that the Veteran received for right shoulder and low back conditions. All available records should be associated with the Veteran's electronic claims file prior to proceeding to the next Board directive. 2. Then, provide the claims file to the same VA provider who rendered the October 2017 examination reports. After review of the now-complete claims file, the VA provider should provide addendum reports for the Veteran's right shoulder and low back disabilities. If the same VA provider is not available, schedule the Veteran with a similarly-qualified examiner to determine the nature and etiology of any right shoulder and low back disabilities. The examiner should elicit from the Veteran a history of symptoms and post-service occupations and how much physical labor was involved. Following a review of the claims file, the examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that right shoulder and back disabilities had their onset in service, or are otherwise related to service, including as due to the in-service motor vehicle accident and lifting a vehicle. The examiner should take into consideration the Veteran's descriptions of continuity of symptoms since service and of his description of post-service construction work as being less than strenuous. Additionally, the examiner must discuss any previous opinions with regard to the etiology of the claimed disabilities. Specifically, the examiner must address the November 2010 opinion from C. R. The absence of contemporaneous medical treatment, standing alone, cannot be the basis for rejecting the lay reports. The medical reasons for accepting or rejecting the Veteran's statements should be set forth in detail. 3. Then, the AOJ must readjudicate the issues on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals 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) (2017).