Citation Nr: 22015691 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 11-17 161 DATE: March 18, 2022 REMANDED The issue of entitlement to service connection for a right knee disability, to include as secondary to a service-connected left knee disability, is remanded. The issue of entitlement to an initial rating in excess of 20 percent for a left shoulder disability prior to April 6, 2011, is remanded. The issue of entitlement to an initial rating in excess of 20 percent for a left shoulder disability from April 1 to November 5, 2012, is remanded. The issue of entitlement to an initial rating in excess of 30 percent for a left shoulder disability, from November 6, 2012, forward, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1978 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009 and May 2010 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case is a lengthy one that involves multiple actions by the Board and an appeal to and remand from, the United Stated Court of Appeals for Veterans Claims (Court). As the procedural history has been detailed at length in the prior actions in the appeal, it will only be repeated herein as necessary to explain the state of the issues currently before the Board. This case was most recently before the Board in November 2019, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for appellate review. In the November 2019 remand, the Board directed the agency of original jurisdiction (AOJ) to obtain all medical records from the Redding, California, Community-Based Outpatient Clinic (CBOC), from January 2008 and May 2011. On remand from the Board, the AOJ associated with the record VA treatment records dated from February 2009 through December 2019. Contained amongst those records are treatment records from the Redding CBOC. However, there are no records from that clinic dated prior to 2010. There is also no statement from the Redding CBOC that the Veteran was not treated at that facility prior to 2010. Accordingly, as the Board cannot conclude that additional records do not exist, the Board finds that the matters must again be remanded to ensure that all records from the Redding CBOC have been obtained and associated with the record. With regard to the Veteran's claim for increased ratings for a left shoulder disability, in the November 2019 remand, the Board directed that VA obtain an addendum opinion to determine the severity of the Veteran's service-connected left shoulder disability, prior to April 2011. Review of the record shows that the directed examination was obtained in February 2020; however the Board finds that the development conducted does not adequately comply with the Board's November 2019 remand directives. Specifically, the examiner did not describe any functional limitation due to pain, weakened movement, excess motion, fatigability, pain with use, incoordination, or on flare-up. The examiner also did not provide an opinion as to whether there is any additional loss of use or range of motion due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. Finally, the examiner did not provide an opinion as to whether there is any additional loss of use or range of motion due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Contact the Redding, California, CBOC and request that that facility confirm the first date on which the Veteran was treated at that facility. The Veteran's treatment dates must be clearly documented in writing in the record. Then, confirm whether the VA treatment records associated with the claims folder contain all possible records related to treatment of the Veteran at the Redding CBOC. (The Board notes that the earliest record from the facility is a February 2010 VA examination report.) If it appears that the Veteran was treated at the Redding CBOC prior to February 2010, obtain all additional, outstanding records of treatment of the Veteran from the Redding CBOC and associate those records with the claims file. Make at least two attempts to obtain such records, after which if the records are still not acquired, the AOJ must make a formal finding that further search would be futile. 2. Obtain an addendum opinion regarding the severity of the Veteran's service-connected left shoulder disability, prior to April 2011. The examiner must review the claims file and should note that review in the report. The opinion should include a statement as the effect of the service-connected left shoulder disability on the Veteran's occupational functioning and daily activities. The opinion should include analysis of retrospective range of motion prior to April 6, 2011, expressed in degrees for active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner is also specifically asked to describe any functional limitation due to pain, weakened movement, excess motion, fatigability, pain with use, incoordination, or on flare-up. The examiner should explicitly provide an opinion as to whether there is any additional loss of use or range of motion due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. The examiner should provide current ranges of motion for active motion, passive motion, weight-bearing motion, and non-weight-bearing motion. The examiner should explicitly provide an opinion as to whether there is any additional loss of use or range of motion due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. A rationale for all opinions expressed must be provided. If it is the examiner's opinion that the Veteran's left shoulder disability was worse than initially rated, or has remained relatively constant throughout the appeal period (since April 6, 2011), the examiner should so state. If the examiner cannot provide any requested opinion without resort to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the cause of additional disability in this case or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. Then, readjudicate the issues on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response before returning the case to the Board. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.