Citation Nr: 21023631 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 10-08 935 DATE: April 21, 2021 REMANDED Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran had active service in the U.S. Air Force from February 1981 to September 1991. This appeal has a long and complicated procedural history. It comes from a June 2009 decision by the Department of Veterans’ Affairs denying service for the Veteran’s left shoulder disability. It returns to the Board of Veterans’ Affairs (Board) from the United States Court of Appeals for Veterans Claims (Court) by way of joint motion for partial remand (JMPR) filed by the Veteran, through an attorney, and VA’s Office of General Counsel. It previously was before the Board in October 2017 and April 2019. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). Both parties to the December 2020 JPMR argued successfully to the Court that the Board’s April 2019 decision regarding entitlement to service connection for a left shoulder disability should be vacated. Both parties to the JMPR also argued there was not substantial compliance with the Board October 2017 remand directives and the appeal should be remanded again under Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the JMPR identified that the October 2017 remand directives required obtaining any outstanding service treatment records (STRs) related to the left shoulder disorder, to include all STRS from 1985 or later and the Veteran’s separation examination were not complied with by VA. Some personnel records were received on post-Board remand but no additional STRs were obtained. There also was no formal finding of regarding the records that were not found which the October 2017 Board remand also directed the RO to complete if records could not be located. In Stegall, the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. The Board notes that it is bound by the Court’s Order granting the JMPR. Thus, the Board finds that this matter must be remanded again. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran’s outstanding service treatment records (STRs) related to the left shoulder disorder, to include all service treatment records from 1985 or later and the separation examination. If any records cannot be obtained, then make a formal finding that such records do not exist or that further efforts to obtain such records would be futile. This formal finding must be included in the claims file. 2. Conduct any appropriate development to obtain the Veteran’s VA treatment records dated since March 2016. If any records cannot be obtained, make a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This formal finding must be included in the claims file. 3. If, and only if, any outstanding records are located or submitted, then return the claims file to the VA examiner who conducted the February 2018 examination or another appropriate clinician for an addendum opinion concerning the nature and etiology of the Veteran’s left shoulder disability. The claims file and a copy of this REMAND must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Based on a review of the claims file, the examiner should identify any left shoulder disability/ies other than radiculopathy of the left upper extremity currently experienced by the Veteran. For each such left shoulder disability, to include fibromyalgia, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it is related to active service. A rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each left shoulder disability other than radiculopathy of the left upper extremity currently experienced by the Veteran, if appropriate. If any requested opinion(s) cannot be provided without resorting to speculation, then the clinician must explain why this is so. The clinician is advised that the Veteran has been diagnosed as having fibromyalgia. The clinician also is advised that the lack of contemporaneous records documenting complaints of or treatment for a left shoulder disability, alone, is insufficient rationale for a medical nexus opinion. 4. Readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.