Citation Nr: 19182003 Decision Date: 10/29/19 Archive Date: 10/29/19 DOCKET NO. 04-31 347 DATE: October 29, 2019 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right elbow/arm disability is remanded. Entitlement to service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from March 1963 to February 1965. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2003 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with that determination, and the present appeal ensued. In a March 2007 decision, the Board, among other actions, denied the Veteran’s appealed issues to establish service connection disabilities of the neck, right shoulder and right elbow/arm. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2009 Memorandum Decision, the Court vacated this portion of the Board’s March 2007 decision and remanded the matters back to the Board. In August 2010, the Board, among other actions, remanded these issues to the AOJ for further development consistent with the Court’s June 2009 Memorandum Decision. In February 2018, the Board, among other actions, denied the Veteran’s appealed issues to establish service connection for disabilities of the neck, right shoulder, and right elbow/arm for a second time. Again, the Veteran appealed this Board’s February 2018 denial to the Court, who vacated this denial and remanded the case back to the Board in an April 2019 Memorandum Decision. The Veteran’s appealed issues have, again, been returned to the Board for appellate consideration congruent with the Court’s April 2019 Memorandum Decision. As an aside, the Board notes that the appealed issue remanded by the Board in February 2018 remains under the jurisdiction of the AOJ. As such, that issue will not be discussed further at this time; rather, it will be readjudicated by the Board under a separate cover once recertified to the Board by the AOJ. 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a right elbow/arm disability is remanded. 3. Entitlement to service connection for a neck disability is remanded. In the April 2019 Memorandum Decision, the Court concluded that, in denying the issues on appeal, the Board improperly relied upon unfavorable opinions from a September 2014 VA examiner. Specifically, while the examiner’s unfavorable opinions were based on the premise that the Veteran’s disabilities were more likely due to the rigors of his post-service employment in construction, the Court found that the stated rationale was not consistent with the Veteran’s December 2014 statements, asserting that such employment entailed supervisory duties rather than physical labor. In essence, the Court concluded that the September 2014 VA examiner’s opinions were inadequate because such were based on an inaccurate factual premise, and the Board’s reliance on such resulted in an error in the duty to assist. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). As such, in accordance with the Court’s April 2019 Memorandum Decision, the Board concludes that another remand is necessary in order to fulfill VA’s duty to assist the Veteran. To ensure that the examiner can provide the requested opinions in light of the Veteran’s complete disability picture, updated and pertinent VA and private treatment records must be sought, obtained, and associated with the file. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the Veteran’s file updated VA treatment records from the VA Medical Center in San Juan, the Commonwealth of Puerto Rico. 2. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who treated the Veteran for his disabilities of the neck, right shoulder, and/or right elbow/arm. After securing appropriate release(s) from the appellant, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the claims file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature and etiology of his disabilities of the neck, right shoulder, and right elbow/arm. The complete file must be made available to the examiner for review in conjunction with the examination, and the examiner must note on the examination report what records were available and reviewed in connection with the examination. Thereafter, the examiner should address the following: a. Identify all disabilities of the neck, right shoulder, and right elbow/arm, present during the pendency of the appeal. b. For each disability identified in part (a), provide an opinion concerning whether such is at least as likely as not proximately due to, or the result of, any incident of his service. *In addressing the above, the VA examiner is reminded that the Veteran is considered to be competent and credible to report symptoms that he experiences/experienced firsthand. In addition, the examiner is on notice that the Veteran’s post-service employment in construction was supervisory in nature and did not entail physical labor. The examiner should provide a complete rationale for all opinions rendered. The examiner should specifically discuss the pertinent evidence of record, to include the Veteran's assertions described in this remand. If the examiner finds that he or she cannot provide any opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. 4. Thereafter, the AOJ must readjudicate the Veteran's appeal. If any benefit sought on appeal is not granted to the fullest extent, a Supplemental Statement of the Case (SSOC) should be issued to the Veteran and his private attorney, and they should be afforded the requisite opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.