Citation Nr: 21076680
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 14-44 178
DATE: December 27, 2021

REMANDED

Entitlement to service connection for a left upper extremity disability is remanded.

Entitlement to service connection for a right upper extremity disability is remanded.

Entitlement to service connection for a skin disorder is remanded.

REASONS FOR REMAND

The Veteran had active service in the United States Army from March 2002 to May 2007 with recognized service in Iraq and Kuwait during the Persian Gulf Era.

The matters on appeal come before the Board of Veterans' Appeals (Board) from July 2012 and August 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). 

These matters were remanded by the Board in October 2018, March 2021, and August 2021 for additional development.  The matters are now again before the Board for adjudication.

A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268 (1998).  Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance.  Id. at 271.  

When the Veteran was originally examined in connection with these matters, the reports contained seemingly contradictory findings, and therefore, follow-up was sought.  The adverse medical opinions obtained following the Board's last remand, appeared to be based on an absence of in-service treatment.  Since it appears the Veteran's service treatment records are unavailable, this rationale is unsatisfactory.  

Accordingly, another opinion is necessary, as detailed below.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records for inclusion in the electronic claims file.

2. Thereafter, refer the file to an appropriate person for an opinion that addresses the following:

(a) identifies any current skin diagnosis and any current right and left upper extremity disability (including of the shoulders); and then,

(b) addresses whether any disability identified is the result of an in-service disease or injury. 

For purposes of the opinion the reviewer should acknowledge the absence of in-service treatment records; the reviewer may assume the credibility of the Veteran's reports of in-service complaints and symptoms; and the reviewer should address whether the course of any currently claimed disability would be consistent with the Veteran's reported history of the claimed disability having its onset during active service.    

If it is necessary to examine the Veteran to obtain the requested opinions, that should be arranged. 

The addendum report should include reasons for any opinion expressed.

If the clinician completing the report is unable to provide an opinion without resort to speculation, he or she should state whether the inability is due to the limits of the person's knowledge, the limits of medical knowledge in general, or there is additional evidence that would permit the needed opinion to be provided.

3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.

 

 

MICHAEL E. KILCOYNE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dodd, Ryan

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.