Citation Nr: 22009102 Decision Date: 02/16/22 Archive Date: 02/16/22 DOCKET NO. 15-19 558 DATE: February 16, 2022 REMANDED Entitlement to an initial compensable rating for left elbow strain with limitation of extension from June 21, 2021 is remanded. Entitlement to an initial rating for left elbow strain with limitation of flexion in excess of 10 percent prior to June 21, 2021, and in excess of 40 percent thereafter is remanded. Entitlement to an initial rating for left elbow strain with limitation of supination and pronation in excess of 20 percent from June 21, 2021 is remanded. Entitlement to an initial rating for right shoulder strain in excess of 10 percent prior to June 21, 2021, and in excess of 40 percent thereafter is remanded. REASONS FOR REMAND The Veteran served in the United States Marine Corps from January 2005 to March 2013. These matters come before the Board of Veterans' Appeals (Board) on appeal of a a March 2013 rating decision from a Department of Veterans Affairs (VA)Regional Office (RO). These matters were previously denied by the Board in an August 2018 rating decision, which was later vacated and remanded by the Court of Appeals for Veterans Claims in a June 2019 order. These matters were previously remanded by the Board in November 2019, August 2020, and October 2021. 1. Entitlement to an initial compensable rating for left elbow strain with limitation of extension from June 2021 is remanded. 2. Entitlement to an initial rating for left elbow strain with limitation of flexion in excess of 10 percent prior to June 21, 2021, and in excess of 40 percent thereafter is remanded. 3. Entitlement to an initial rating for left elbow strain with limitation of supination and pronation in excess of 20 percent from June 21, 2021 is remanded. 4. Entitlement to an initial rating for right shoulder strain in excess of 10 percent prior to June 21, 2021, and in excess of 40 percent thereafter is remanded. In its October 2021 remand, the Board instructed the RO to obtain addendum medical opinions for the Veteran's right shoulder and left elbow disabilities that addressed (a) whether the Veteran's flare-ups reported during his January 2013 and March 2015 VA shoulder and elbow examinations caused additional functional loss and (b) whether the Veteran experienced additional functional loss after repeated use over time since the date of the claim. The Board noted that an addendum opinion was acceptable, but if the examiner determined an in-person examination was necessary in order to provide an opinion, one should be scheduled. The RO submitted three examination requests on October 26, 2021; October 27, 2021; and October 28, 2021; each request noted that the Veteran did not need to report for all examinations related to his right shoulder and left elbow strains. Additionally, there are four Exam Scheduling Request Contention Cancellation forms received on November 14, 2021 that note these examinations were cancelled per the Veteran's request. There is no additional information given as to why these examinations were cancelled or whether any attempt to reschedule them was made. In its November 2021 Supplemental Statement of the Case (SSOC), the RO stated that it scheduled the Veteran for a "comprehensive VA medical examination" in accordance with the Board's October 2021 remand. The SSOC noted the Veteran cancelled his examination appointments on November 14, 2021; however, the SSOC also states the Veteran failed to appear for this cancelled examination and did not show good cause. The RO proceeded with adjudicating the Veteran's claims and again denied increased ratings. While the Board notes that its October 2021 remand allowed for the possibility of an in-person examination or interview if determined to be necessary by an examiner, the Board first and foremost asked for an addendum opinion based on a review of the claims file. Additionally, not only did the RO's own examination scheduling requests note that the Veteran did not need to report for any of his examinations, but it is clearly noted that the Veteran cancelled these examinations instead of failing to appear. There is no evidence that addendum VA opinions were sought or that the RO otherwise attempted to work with the Veteran to explain the need for in-person examinations. As such, the Board finds that there has not been substantial compliance with the Board's previous remand directives. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, these matters are REMANDED for the following action: Refer the VA claims file to a medical professional with appropriate expertise to obtain an opinion as to the claims of entitlement to higher initial ratings for right shoulder strain and left elbow strain, to include with limitation of flexion, extension, as well as supination and pronation. The examiner is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner is asked to address the following: Provide retrospective opinions concerning the estimated range of motion of the Veteran's right shoulder (a) during a flare-up, (b) with repeated use over time, (c) on passive and active motions, and (d) in weight-bearing and non-weight-bearing positions using the symptoms described in the January 2013 and March 2015 shoulder examinations. Provide retrospective opinions concerning the estimated range of motion of the Veteran's left elbow (a) during a flare-up, (b) with repeated use over time, (c) on passive and active motions, and (d) in weight-bearing and non-weight-bearing positions, using the symptoms described in the January 2013 and March 2015 shoulder examinations. In addition to the symptoms reported on the January 2013 and March 2015 examinations, the examiner must review and discuss contemporaneous medical treatment records, to specifically include the following: (a.) April 29, 2013 treatment notes. (b.) June 7, 2013 treatment notes. (c.) June 13, 2013 treatment notes. (d.) June 17, 2013 treatment notes. (e.) November 12, 2014 treatment notes. (f.) November 26, 2014 treatment notes. (g.) Veteran statement received May 26, 2015 in response to the April 2015 Statement of the Case. A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.