Citation Nr: 22012295 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 11-26 513A DATE: March 3, 2022 REMANDED Entitlement to service connection for a right elbow disorder, to include arthritis, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as due to a service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from February 1970 to February 1971. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from June 2011 (elbow) and September 2015 (psychiatric) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Veteran testified before a Veterans Law Judge who is no longer at the Board. In December 2021, the Veteran was notified of the departure of the Veterans Law Judge and the Veteran did not opt to have a new hearing. In a December 2020 decision, the Board denied the Veteran's claims for service connection for a right elbow injury and generalized anxiety disorder. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (the Court). In June 2021, the Court granted a Joint Motion for Remand (JMR) filed by the parties, which requested a vacatur and remand of the December 2020 decision. In August 2021, the Board remanded the Veteran's appeal to the RO for evidentiary development consistent with the Court's remand order. The Board also acknowledges that there is an outstanding privacy request of record, which the RO has acknowledged. There is no prejudice to the Veteran in remanding his claims as the RO is currently processing the privacy request and remand affords the Veteran's attorney additional time to submit any evidence or argument. 1. Entitlement to service connection for a right elbow disorder, to include arthritis, is remanded. Although the Board sincerely regrets the further delay of this issue, remand of this claim is once again required as the November 2021 medical opinion obtained on remand did not comply with the Board's remand directives. The June 2021 JMR granted by the Court stated, in part, that the March 2016 VA examination failed to provide an adequate rationale for the conclusion that the right elbow disorder was unrelated to service. Specifically, the JMR stated that the examiner's failure to consider the Veteran's lay reports of continuity and explanation as to why there were no records of complaints or treatment in service (the Veteran has consistently stated that he did not go to sick call but instead went to his lieutenant who gave him an ice pack) made the opinion inadequate. The Board's August 2021 remand directed the RO to obtain a new VA examination which should "should refer to the pertinent evidence of record, including the Veteran's lay statements in support of his claims; specifically, the Veteran's statements with respect to a fall during service injuring his right elbow." The Board's remand also asked that the examiner discuss the Veteran's explanation for the lack of treatment in service, his spouse's lay statement, and his consistent reports of pain dating to at least 1995. In November 2021, the RO obtained a Disability Benefits Questionnaire for Forearm Conditions and an accompanying Medical Opinion. The examiner's response in the medical opinion was a single paragraph, copied and pasted eight times, which did not address the Veteran's explanation as to why there was no treatment of his elbow in service, or his spouse's statement, or his consistent reports of pain since at least 1995. The Veteran complained about this examination in a December 2021 telephone call to VA in which he stated that the examiner was rushed and only asked him a single question. Unfortunately, the Board must remand again in order to ensure compliance with the Court's June 2021 JMR as well as the Board's August 2021 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (finding that the Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or explain why the terms will not be fulfilled.). In addition to the inadequate medical opinion which did not comply with the Board's remand directives, the RO also failed to obtain the transcript of the July 24, 2012, Social Security Administration (SSA) hearing or make a formal finding that it was unavailable. The Board's August 2021 remand stated that the RO was to obtain outstanding SSA records. "In particular, the AOJ must obtain a copy of the transcript for the July24, 2012, SSA hearing... If any records are unavailable, a formal finding of such should be associated with the claims folder." The RO obtained SSA records in September 2021 but these records did not include a transcript and the RO did not make a formal finding that the transcript was unavailable; therefore, remand is required. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by Board confers upon claimant, as a matter of law, the right to compliance with remand order). 2. Entitlement to service connection for an acquired psychiatric disorder, to include as due to a service-connected disability, is remanded. Finally, because a decision on the remanded issue of service connection for a right elbow disorder could significantly impact a decision on the issue of service connection for acquired psychiatric disorder, to include as due to a service-connected disability, the issues are inextricably intertwined. A remand of the claims for an acquired psychiatric disorder is required. The matters are REMANDED for the following action: 1. Obtain a copy of the transcript for the July 24, 2012, Social Security Administration hearing. If the transcript is unavailable, a formal finding of such should be associated with the claims folder. 2. Obtain for addendum medical opinion for the Veteran's right elbow disorder. If determined necessary, schedule the Veteran for VA examinations with examiner(s) of appropriate expertise to determine the nature and etiology of the claimed right elbow disorder. In either case, the examiner is to be provided access to the Veteran's electronic claims file and must specify in the report that these records have been reviewed. The examiner must provide an opinion as to whether the Veteran's claimed right elbow disorder is at least as likely as not (50 percent or greater probability) caused by or resulted from the Veteran's active service. In providing the requested opinions, the examiner(s) should refer to the pertinent evidence of record, including the Veteran's lay statements in support of his claims; specifically, the Veteran's statements with respect to a fall during service injuring his right elbow. Also, the examiner should discuss the Veteran's statements with respect to the chronicity of his right elbow disorder. In particular, the examiner should review the Veteran's explanation for the lack of contemporaneous service treatment records, his spouse's lay statement, and his consistent reports of pain dating to at least 1995. The examiner must provide a complete rationale for any opinions expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner should also reconcile all prior reports, as necessary. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for an acquired psychiatric disorder, to include as due to service-connected disabilities. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.