Citation Nr: 1808589 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 04-07 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for residuals of an injury to the shoulders. ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1952 to September 1954. The Veteran died in February 2013. The appellant's request to be recognized as a substitute claimant in the Veteran's appeal was granted in March 2014. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before a Veteran's Law Judge (VLJ) during a May 2006 Video Conference hearing. The transcript of the hearing is of record. The VLJ subsequently left the Board's and the Appellant was advised in a January 2018 notice that the appeal would be reassigned to a new VLJ and offered the option of requesting a new hearing. The Appellant did not elect a new hearing and the Board will therefore proceed based upon the existing appellate record. This matter was previously before the Board in September 2007, July 2009 and May 2011, and on each occasion it was remanded for further development. In June 2012, the Board found that those remand orders had been substantially complied with, but remanded the issue of service connection for residuals of injuries to the shoulders for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The United States Court of Appeals for Veterans Claims ("the Court") has held that a remand by the Board imposes a duty on the Secretary of Veterans Affairs to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). It further instructed that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. Id. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. The June 2012 BVA remand directed the AOJ to 1) obtain VA treatment records dating from July 2011 forward; 2) contact the Veteran and ask him to identify any private medical records not already of record regarding a 2009 shoulder surgery and to obtain any records identified, 3) obtain any records pertaining to the Veteran from the U.S. Department of Labor Office of Workers' Compensation Programs (OWCP) and to notify the Veteran if the records were not able to be obtained; 4) obtain a new medical opinion regarding the etiology of the Veteran's shoulder disability once the prior development was completed. The Board notes that VA treatment records dating from July 2011 to July 2012 were obtained and associated with the claim file. The Board also notes a June 2012 development letter mailed to the Veteran asking him to identify any outstanding records from his 2009 surgery. The record does not indicate that the Veteran identified any records, so the Board finds that that directive has been substantially complied with. The Board's review of the file, however, indicates that the remaining two remand directives were not substantially complied with. First, the Board notes that the RO made two records requests to OWCP, one in August 2012 and one in December 2012. In a March 2014 Deferred Rating Decision, the RO noted that if there was no response from OWCP, a notice must be sent to the appellant notifying her of the records they were unable to obtain and advise her that she was responsible for providing the evidence. However, after this deferred rating decision was prepared, the claim file does not contain either a formal finding that the records were unavailable or any notice sent to appellant regarding their unavailability. The Board therefore finds that the remand directive was not substantially complied with. Upon remand, another attempt to secure the records should be made, and if the records are found to be unavailable, appropriate notice must be sent to the Appellant. The Board also finds that the required medical opinion regarding the Veteran's shoulder disability was not obtained. The March 2014 Deferred Rating Decision noted that the medical opinion should be obtained once development was complete, but the Board's review of the file indicates that the opinion was not subsequently requested or provided. Remand is therefore required to provide appellant with a VA medical opinion regarding the etiology of the Veteran's bilateral shoulder disability. Indeed, it appears after a review of the record, that the Agency of Original Jurisdiction did not conduct any additional development on the remanded issues, after the March 2014 deferred rating. The issue on appeal was not even adjudicated. As such, the appeal must be remanded for compliance of the prior Board's remand orders and readjudication of the appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain records pertaining to the Veteran from the U.S. Department of Labor's Office of Worker's Compensation Programs. All attempts to obtain the records must be documented in the claim file. If after attempted to obtain the records it is concluded that it is reasonably certain that they do not exist or that further efforts to obtain them would be futile, notify the appellant and (a) identify the unavailable records; (b) briefly explain the efforts made to obtain those records; (c) describe any further action VA will take with respect to the claim; (d) inform the appellant that she is ultimately responsible for providing the evidence. The appellant must then be given an opportunity to respond. 2. After the above development is completed to the extent possible, obtain a VA medical opinion regarding the nature and etiology of the Veteran's bilateral shoulder disability. The file should be reviewed and a complete rationale provided for all opinions expressed. The opinion should address whether it is at least as likely as not (50 percent probability or greater) that bilateral shoulder disabilities began in or were caused or aggravated by active service, to include as the result of the in-service truck accident described in the Veteran's lay statements. The opinion should consider the Veteran's credible and competent statements contained in the record as to the injuries sustained during service and his description of any treatment by healthcare providers during service and reports of continuity of symptoms since discharge. If the examiner is unable to provide the requested opinion without resorting to speculation, the examiner must provide the basis for that determination. 3. The examination report must be reviewed to ensure it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 matter must be afforded expeditious treatment. The law requires that all issues 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. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).