Citation Nr: 21075063 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-55 233A DATE: December 17, 2021 REMANDED Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow scar is remanded. Entitlement to service connection for a left elbow scar is remanded. REASONS FOR REMAND The Veteran served in active-duty service with the Army from December 1953 to November 1955. This matter is on appeal from a January 2016 rating decision. During the pendency of the appeal, the Veteran died in January 2020. The appellant, the Veteran's surviving spouse, was properly qualified as a substituted claimant in July 2021 for the Veteran's pending claim. The Board remanded this appeal in December 2020 for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board finds that remand is warranted to additional development. In the December 2020 Board decision, the Board noted that the Veteran had not been afforded a VA examination on the nature and etiology of his claimed issues and remanded to schedule the Veteran for a VA examination. Review of the claims record shows in January 2021 the appellant reported the death of the Veteran in January 2020. The December 2020 Board decision does not indicate that they were aware of the Veteran's death in January 2020 prior to issuance of the decision. However, no VA medical opinion was obtained on the nature and etiology of the Veteran's claimed issues as requested by the December 2020 Board decision. As such, the Board finds there has not been substantial compliance with the directives of the December 2020 Board remand decision. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to compliance with the remand directives); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance). Furthermore, although the appellant in August 2021 reported that there was no more information to provide in support of the claim, review of the record does not show any VA medical treatment records have been associated with the claims file. Although the Veteran did not indicate whether he received treatment from VA, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, a February 2021 Social Security Administration (SSA) profile and benefits inquiry shows the Veteran was granted entitlement to SSA benefits from June 1991. Review of the record does not show that the SSA decision or related SSA documents have been associated with the record. As the SSA records may provide pertinent evidence as to the Veteran's claims, remand is warranted to obtain these records that relate to the Veteran's claimed issues. See Golz v. Shinseki, 590 F.3d 1317, 1321 (2010). As such, the Board finds remand warranted to obtain a medical opinion and to associate outstanding records with the claims record. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Confirm with the Social Security Administration (SSA) whether the Veteran is receiving SSA disability benefits, obtain his SSA records relating to his claims for right and left elbow disability and right and left elbow scar and associate them with the Veteran's claims file. All records/responses received must be associated with the electronic claims file. 3. Arrange for the Veteran's claims folder to be reviewed by an appropriate specialist, to obtain a medical opinion that addresses the etiology of the Veteran's claimed right and left elbow disability, and right and left elbow scar. The examiner should note a review of the claims folder has been performed in conjunction with the report. After reviewing the file, the examiner should provide opinions on the following: (a.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran's right elbow disability is etiologically related to the Veteran's active-duty service? (b.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran's left elbow disability is etiologically related to the Veteran's active-duty service? (c.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran's right elbow scar is etiologically related to the Veteran's active-duty service? (d.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran's left elbow scar is etiologically related to the Veteran's active-duty service? (e.) In rendering the requested opinions, the VA examiner should address the Veteran's lay statements made in July 2015 that his claimed issues stemmed from a fight in service. The examiner is advised that the Veteran was competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (f.) If the VA examiner is unable to provide an opinion without resorting to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.