Citation Nr: 21041474 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-42 657 DATE: July 9, 2021 REMANDED Service connection for migraine headaches is remanded. Service connection for a left shoulder condition is remanded. Service connection for a left wrist condition is remanded. Service connection for a right shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from September 2004 to September 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has been previously remanded one time in January 2019 for additional development. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 1 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. at 271. In January 2019, the Board directed that the Veteran be provided with VA examinations for his migraines, bilateral shoulder, and left wrist disabilities. The Board instructed the examiner to account for lay statements of the Veteran and JV, a fellow Marine, in the nexus opinion. The January 2019 order specified four particular contentions for consideration extensive carrying of a heavy rucksack (as relating to the Veteran's shoulder disabilities), head trauma with loss of consciousness, and firing a weapon close to his head (migraines) and the Veteran's description of his fall onto his left wrist. The Board also identified a lay statement from the Veteran's fellow Marine, JV, detailing his observations of the Veteran's fall. The Veteran attended VA examinations for his shoulders, left wrist, and migraine headaches in September 2020. The contract examiner, a nurse practitioner, failed to address the specific circumstances identified in the Board's January 2019 order in her negative nexus opinions on the Veteran's bilateral shoulder, left wrist, and migraine disabilities. The Board acknowledges that the examiner referenced the lay statement from JV in her negative opinion on the Veteran's left wrist injury, although she did not reference the Veteran's statements. However, the examiner did not explain how she considered the lay statements of the Veteran and JV in reaching her conclusion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). These failures to follow the Board's remand instructions require remand. Moreover, on remand, additional efforts to associate outstanding VA and private treatment records are advisable. With regard to VA records, it is clear the Veteran receives ongoing treatment, and updated VA treatment records must be obtained. Additionally, there is some indication that the Veteran was treated at VA facilities prior to 2011; he has referred to mental health treatment from as early as January 2009. On remand, it should be confirmed that no VA treatment records prior to December 2011 are available. Regarding private treatment, the Veteran submitted private records with his initial application in March 2105, and in response to later VA requests has submitted isolated treatment records. However, complete private records from the private chiropractors, medical doctors, and surgeons he has seen would be helpful in the adjudication of the claims. In March 2015, the Veteran stated that he had bimonthly chiropractic appointments to treat his shoulder and wrist pain; only some records of this treatment have been provided, though the Veteran had been receiving chiropractic care from private practice since at least December 2014, and appears to continue to receive such treatment. VA treatment records from February 2017 indicate that the Veteran reported receiving ongoing care from a private medical doctor. Again, only isolated progress notes are associated with the file, and none are recent. A remand to obtain these records is warranted. The matters are REMANDED for the following action: 1. Associate with the claims file complete and updated VA treatment records, including requesting any treatment records from the greater Los Angeles VA system prior to December 2011. 2. Contact the Veteran and request properly executed releases for any private care providers who have treated him for any currently claimed disability. Records from the private chiropractic practices, surgeons, specialists, and primary care physicians should be specifically requested. Upon receipt of such, VA must take appropriate action to contact the identified providers and request complete treatment records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 3. After the above is completed, obtain addendum medical nexus opinions regarding the wrist, shoulders, and headache claims. The claims folder must be reviewed in conjunction with the examination; provision of a new physical examination is at the discretion of the reviewer. a. The reviewer must opine as to whether it is at least as likely as not (50 percent probability or greater) that any current left wrist condition was caused or aggravated by service. The reviewer must specifically consider and comment upon the circumstances of the Veteran's overseas service, to include the Veteran and JV's description of an August 2006 incident where the Veteran fell out of a truck as well as the Veteran's report of carrying rucksacks that weighed in excess of 50 pounds. b. The reviewer must opine as to whether it is at least as likely as not that any current shoulder condition was caused or aggravated by service. The reviewer must specifically consider and comment upon the circumstances of the Veteran's overseas service, to include the Veteran's report of carrying rucksacks that weighed in excess of 50 pounds. c. The reviewer must opine as to whether it is at least as likely as not that any current migraine condition was caused or aggravated by service. The reviewer must specifically consider and comment upon the circumstances of the Veteran's overseas service, to include the Veteran's report of firing a weapon close to his head and his report of head trauma and loss of consciousness. 4. After the above has been completed, readjudicate the claims on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case, and return the appeal to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Megan-Brady Viccellio 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.