Citation Nr: 21077040 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-45 649 DATE: December 28, 2021 REMANDED The claim for entitlement to benefits under 38 U.S.C. § 1151 for residuals, right shoulder injury and surgery is remanded. The claim for entitlement to benefits under 38 U.S.C. § 1151 for residuals, left shoulder injury and surgery is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1978 to March 1998. The claim was remanded by the Board in March 2019; unfortunately, the requested development has not yet been completed and the claim must be remanded for further development. 1. Entitlement to benefits under 38 U.S.C. § 1151 for residuals, right shoulder injury and surgery 2. Entitlement to benefits under 38 U.S.C. § 1151 for residuals, left shoulder injury and surgery In the March 2019 remand, the Board explained that the 2016 VA opinion regarding the Veteran's claim is inadequate for the purpose of evaluating the merits of the claim. The Board requested an addendum opinion. To date, one has not been provided. Rather, the request for an addendum opinion was canceled by the medical staff, who determined that the opinion sufficiently addressed the issues in this case. The Board disagrees, hence the remands. As there has not yet been substantial compliance with the Board's 2010 remand order regarding the issues on appeal, the Board concludes that they must be remanded in order to obtain the requested opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Where the Board fails to ensure substantial compliance, remand is appropriate. Stegall, 11 Vet. App. at 271 In addition, the file demonstrates that the last VA treatment documented in the claims file in dated in January 2019. All outstanding records of ongoing VA treatment should be obtained and associated with the claims file prior to obtaining the requested opinion. The Board notes that the 2019 remand order also requested that the required steps be taken to obtain private treatment records identified by the Veteran. Despite an October 2019 letter to the Veteran describing what was needed, he did not respond or authorize VA to obtain the referenced private treatment records. The Board further notes that this information may be helpful to his claim and advises the Veteran to follow the directions in the 2019 letter for providing access to those records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from January 2019 to present. 2. Once the above directive is completed, obtain a VA addendum medical opinion consistent with this and the 2019 remand orders. If an examination is deemed necessary, one should be scheduled. Based on the review of the record, the VA examiner must specifically address whether additional left and/or right shoulder disabilities, claimed as due to falling because of medication prescribed by the Department of Veterans Affairs, specifically Ambien, were as a result of VA's treatment or failure to treat. The VA examiner is asked to provide an opinion addressing: (1) Whether it is at least as likely as not (a 50 percent or greater probability) that any additional left and/or right shoulder disabilities were proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of the VA in treating the Veteran, to include prescribing Ambien; and if so, did VA fail to exercise the degree of care that would be expected of a reasonable health care provider? OR (2) Whether it is at least as likely as not that any additional disability was proximately caused by an event NOT reasonably foreseeable? (The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32.) In determining whether any additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA, the examiner should specifically consider whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner is advised that, whether the proximate (i.e., direct) cause of a Veteran's additional disability was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. The examination report must include a complete rationale for all opinions expressed. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. B., 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.