Citation Nr: 20007803 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 11-19 494 DATE: January 30, 2020 REMANDED Entitlement to service connection for a right arm disability, to include forearm injury residuals and lateral epicondylitis is remanded. REASONS FOR REMAND The Veteran served honorably on active duty in the United States Army from June 2008 through October 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in March 2016, February 2017, and February 2018. In the March 2016 decision, the Board remanded the claim for additional development. The claims file reflects that the VA sent the Veteran a letter in June 2016 to schedule a VA examination, but the Veteran did not contact the VA and his examination was not scheduled; his claim was denied. In the February 2017 decision, the Board found there was no indication in the record that the Veteran was ever actually scheduled for the requested examination. As a result, the Board remanded the claim again to obtain additional treatment records and to schedule the Veteran for an examination. Similar to before, there was no clear evidence in the record documenting actual attempts to contact the Veteran. However, in an August 2017 Supplemental Statement of the Case (SSOC), the Veteran’s claim was again denied on the basis that he did not appear for a June 2017 VA examination. The February 2018 Board decision concluded the absent documentation the Veteran was notified of an examination, the RO cannot find he missed his examination without good cause. To ensure substantial compliance with the previous remand instructions, the Board again remanded the Veteran’s claim for a VA examination. Unfortunately, the Board has determined the Veteran’s claim must be remanded again in order to be in compliance with the previous remand instructions. Veterans, as a matter of law, are entitled to compliance with Board instructions. Stegall v. West, 11 Vet. App. 268 (1998). The record reflects the RO generated documentation reflecting the Veteran’s addresses. Two separate VA documents were sent to the Veteran and were both returned. The RO then used demographic data and performed a CLEAR Inquiry to obtain the Veteran’s address and the documentation was re-sent. Two additional VA examinations were apparently scheduled, one for June 28, 2019 and a second for September 30, 2019. Entries in the Veteran’s file shows notes that the Veteran’s examinations were cancelled because he did not attend the scheduled examinations. It is unclear whether the Veteran received notice of the examinations. A written notice should have been dispatched to the Veteran and his representative as to the time, date, and location of the examination. The previous remand instructions specifically state the scheduling of the examination should be sent to the Veteran and his representative and the record does not reflect notice of the examinations was ever sent to the Veteran. In their January 2020 brief, the Veteran’s representative reported the Veteran never received any correspondence regarding an examination. The Veteran has a duty to report at the scheduled time and to actively participate in the development of the claim (unless good cause for the absence has been shown), but it appears the Veteran was never given the opportunity in the first place. The claim will be remanded for development and documented compliance with the Board’s prior directives. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records from any VA facility or private provider from which the Veteran has received treatment. 2. Contact the Veteran and their representative to reschedule an upper extremity examination in order to determine the nature and etiology of recurrent right upper arm extremity disorder and its relationship, if any, to active service. The RO must document substantial efforts to schedule the examination and associate such documentation to the claims folder. The actual scheduled examination information must be sent to the Veteran and his representative. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified recurrent right upper extremity disorder had its onset during active service, is related to the Veteran’s in-service right upper extremity complaints, or otherwise originated during active service. The examiner should address in detail the additional functional impairment and range of motion loss due to factors such as pain, weakened movement, excess fatigability, incoordination, and flare-ups. The examiner must estimate any additional loss of motion to the best of his or her ability. 3. Before issuing any supplemental statement of the case or returning the case to the Board, the RO must ensure compliance with the Board’s remand instructions, to include ensuring that all efforts to contact the Veteran or to notify him of his scheduled examination have been included in his claims file. After the above action is completed, if the claim is not fully granted, a supplemental statement of the case should be provided. The claims file should then be returned to the Board for further appellate consideration. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.