Citation Nr: 21022760 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-66 422 DATE: April 19, 2021 REMANDED Service connection for a left shoulder disability, to include a labral tear status post Superior Labrum from Anterior to Posterior (SLAP) procedure with arthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1994 to September 2015. This matter comes before the Board of Veterans Appeals (Board) on appeal from a December 2015 rating decision. This matter was previously before the Board in May 2019, when the Board denied service connection for a left shoulder disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by counsel for both parties, which vacated the May 2019 Board decision to the extent that it denied service connection for a left shoulder disability, and remanded that issue for readjudication. In August 2020, the Board remanded the matter for further development and, in so doing, directed the Agency of Original Jurisdiction (AOJ) to obtain an addendum VA opinion regarding the nature and etiology of the Veteran’s left shoulder condition. The remand directives specifically stated that the examiner was to address and consider the Veteran’s April 1996 in-service medical examination report which stated that he had fully recovered from his pre-existing left shoulder surgery and that the condition had fully resolved. The directives also stated that the examiner was to address and consider the fact that there are no treatment records for the Veteran’s left shoulder after April 1996 until 2010. Unfortunately, the Board finds that there has not been substantial compliance with the August 2020 remand directives. A review of the record reveals that the October 2020 addendum VA opinion does not address the April 1996 in-service medical examination report or the absence of treatment records for the Veteran’s left shoulder for approximately 14 years. While the examiner noted that she reviewed the April 1996 records, she did not discuss the finding that the Veteran’s condition had fully resolved. Rather, she opined that the Veteran’s pre-existing left shoulder condition was not aggravated beyond its natural progression by service because previous pre-service injury and surgery are known risk factors for the development of latent onset degenerative joint disease. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is neither optional nor discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). The Board’s failure to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. The Board sincerely regrets the delay associated with another remand but finds that this remand is necessary to ensure that the AOJ substantially complies with the Board’s prior remand order. Accordingly, the matter is REMANDED for the following action: Accord the Veteran an appropriate VA examination to determine the nature and etiology of his left shoulder disability. The Veteran’s entire electronic claims file must be accessible for review by the VA examiner. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. After review of the claims file, and an interview with and examination of the Veteran, the examiner is asked to opine as to the following: Is it at least as likely as not that the Veteran’s diagnosed left shoulder disability onset in, or is otherwise related to, his active duty? In answering this question, the examiner must presume that the Veteran’s pre-existing left shoulder disability had resolved. See April 1996 in-service medical examination report. Also, the examiner must address and consider: (a.) the fact that there are no treatment records for the Veteran’s left shoulder until 2010, when he began physical therapy from May 2010 to November 2012, and then had surgery in February 2013 and (b.) the fact that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A clear rationale for all requested opinions shall be provided. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any VA medical examination, if requested, may impact the determination made. 38 C.F.R. § 3.655. The Veteran is also advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Benson, 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.