Citation Nr: A21020172 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 190924-33987 DATE: December 17, 2021 REMANDED 1. Entitlement to service connection for trouble sleeping is remanded. 2. Entitlement to service connection for left shoulder pain is remanded. 3. Entitlement to service connection for left wrist pain, to include as secondary to service-connected left hand injury residuals, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1990 to January 1991 and April 1993 to April 1993, with additional service in the Army National Guard of Louisiana. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2019 and May 2019 Appeals Modernization Act (AMA) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the September 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. To more accurately reflect the scope of the Veteran's claim, the issue of entitlement to service connection for left wrist pain has been recharacterized as shown on the title page. 1. Entitlement to service connection for trouble sleeping 2. Entitlement to service connection for left shoulder pain 3. Entitlement to service connection for left wrist pain, to include as secondary to service-connected left hand injury residuals Upon review of all evidence of record, the Board finds that there were pre-decisional duty to assist errors and a remand is required. Specifically, the Veteran filed his claim of entitlement to service connection for trouble sleeping and left shoulder pain on November 9, 2018. See VA Form 21-526EZ. The AOJ denied his claims in the April 2019 rating decision due to lack of evidence of current diagnoses. No treatment records were reviewed in the process of this determination. In the same rating decision, the AOJ adjudicated unrelated service connection claims based on the Veteran's private treatment records and VA examinations, during which he reported that he was not treated at any VA medical centers. See April 2019 VA examination. The record also demonstrates that the Veteran did not begin treatment at a VA medical center until May 2019. Consequently, no prior VA treatment notes are of record. Based on the foregoing, at the time of the April 2019 rating decision, the VA was on notice of the Veteran's private medical providers. As such, the AOJ should have made efforts to obtain the Veteran's relevant private treatment records as required under 38 U.S.C. § 5103A(b). Further, in the May 2019 rating decision, the AOJ denied entitlement to service connection for left wrist pain because the Veteran missed a VA examination scheduled in support of his claim. The Board finds that the record contains an Exam Scheduling Request in April 2019. In addition, in the April 2019 rating decision, the AOJ deferred the issue of entitlement to service connection for left wrist pain pending VA examination. However, it is not clear whether the Veteran was actually notified because there is no document in the record that specifies the date, time and place of the examination. Another May 2019 document in the file titled Exam Scheduling Request Contention Cancellation states that the Veteran was a no show, and that the Veteran's matter has been cancelled from the scheduling request. The record does not contain any letter or other document reflecting that the Veteran was properly notified or advised of the scheduled examination prior to cancellation. Additionally, after the Veteran had missed the scheduled appointment, the record does not suggest that any follow-up was made to determine if the Veteran had received notice of the examination appointment or if he missed the appointment for good cause. Under the AMA framework, the Board may remand, where there has been a duty to notify and/or assist error prior to issuance of the appealed decision. While the Board regrets the delay, due to the VA's failure to notify and assist, the Veteran's appeal must be remanded. At this time, the Board notes that the Veteran is advised that the duty to assist is not a one-way street. He cannot stand idle when the duty to assist is invoked by failing to provide important information or otherwise failing to cooperate. Woods v. Gober, 14 Vet. App. 214, 224 (2000); Hurd v. West, 13 Vet. App. 449, 452 (2000) (noting that a veteran cannot passively wait for help from VA). The Veteran is encouraged to provide adequate information to obtain relevant private treatment records and to appear for any scheduled VA examination. The matters are remanded for the following action: 1. Contact the Veteran to secure the proper authorizations where necessary and make arrangements to obtain all the records of treatment or examination for his trouble sleeping, left shoulder pain and left wrist pain from all the sources identified by the Veteran which are not already on file. Any and all information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After completing #1, schedule the Veteran for a VA examination to determine the nature and etiology of his left wrist pain, to include as secondary to service-connected left hand injury residuals. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examination should include any diagnostic testing (including X-rays), or evaluation deemed necessary for the specific claimed disability. The AOJ should document all efforts undertaken to contact the Veteran and his representative when attempting to schedule the examination. Such should be included in the claims file. If, for any reason, the Veteran does not attend the requested examination, a competent medical professional should review the file and provide the requested opinion to the extent possible based on a review of the claims file. The VA examiner should respond to the following inquiries: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's left wrist pain had its onset in, or is otherwise related to, active service. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left wrist pain was caused or aggravated by his service-connected left hand injury residuals. A complete rationale for all opinions expressed and conclusions reached must be provided. In providing this opinion, the examiner must address all of the evidence of record, to include the Veteran's service treatment records (STRs) and private treatment records. The examiner must also address any lay contentions. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.