Citation Nr: 21065017
Decision Date: 10/22/21	Archive Date: 10/22/21

DOCKET NO. 11-08 859
DATE: October 22, 2021

REMANDED

Entitlement to service connection for left knee disability is remanded.

Entitlement to service connection for a left shoulder disability is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1961 until August 1964. 

This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902 (c). 38 U.S.C. § 7107 (a)(2). 

This appeal was most recently before the Board in June 2021 when it was remanded for addendum medical opinions. There has not been substantial compliance with the Board's prior remand directives and another remand is now required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 

Entitlement to service connection for left knee disability is remanded.

Entitlement to service connection for a left shoulder disability is remanded.

In the most recent remand, the Board specifically directed that the agency of original jurisdiction (AOJ) obtain an addendum medical opinion from a clinician other than the examiner who conducted the October 2020 examination and provided an etiology opinion in February 2021. Despite the Board's specific instructions, the August 2021 addendum opinion was provided by the same examiner and is inadequate for the same deficiencies identified in the earlier opinions. 

Where the remand orders of the Board are not complied with, the Board itself errs if it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claims must be remanded again for the AOJ to obtain addendum medical opinions in compliance with the Board's June 2021 remand order. 

The matters are REMANDED for the following action:

1. Obtain an addendum medical opinion from an appropriate clinician other than the October 2020 examiner and February and June 2021 opinion provider regarding the likely etiology of the Veteran's left shoulder and left knee disabilities. Copies of all pertinent records should be made available to the opinion provider for review. If an opinion cannot be made without examination of the Veteran, one should be scheduled. Based on a review of the record, the opinion provider must answer the following: 

(a.) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed left knee disability is related to an in-service injury, event, or disease, including the Veteran's in-service fall on his left knee in June 1964? 

(b.) Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed left shoulder disability is related to an in-service injury, event, or disease including a July 1963 fall at Fort Benning, Georgia? 

The opinion provider is notified that any provided opinion that does not specifically consider and address the Veteran's lay assertions that the injuries occurred in service, that he continued to have problems with his left knee and left shoulder upon separation, and that he began treating with over-the-counter medication eight years or less after separation from service will be inadequate and will further delay the Veteran receiving a decision on his claim. 

A complete rationale must be provided for all opinions provided. If the opinion provider cannot provide an opinion without resort to speculation, the opinion provider must say why. 

2. After completion of the foregoing, ensure the obtained medical opinions comport with the directives of this remand prior to readjudication. 

 

 

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.D. Collins, 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.