Citation Nr: 22019093 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-55 764 DATE: March 31, 2022 REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right hand disability is remanded. Entitlement to service connection for a left hand disability is remanded. REASONS FOR REMAND The Veteran had active military service from September 1994 to February 1995 and from March 1996 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2019, at which time the issues on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection Right Hand, Left Hand, and Right Shoulder Disabilities In the April 2019 remand, the Board directed that the Veteran should be afforded a VA examination to determine the nature and etiology of any currently present right hand, left hand, and right shoulder disabilities, to include a 2018 diagnosis of inflammatory arthritis. A review of the record shows that the Veteran was afforded the directed VA examination in January 2020. Accompanying medical opinions were also provided at that time. However, a review of the examination reports shows that they are inadequate. In this regard, it was noted that the Veteran did not have current diagnoses of right hand, left hand, or right shoulder disabilities. However, diagnostic imaging was not performed. As such, it cannot be determined with certainty that the Veteran does not have current diagnoses of disabilities affecting his hands or his right shoulder. Additionally, the examiner discounted a recorded diagnosis of inflammatory arthritis out of hand, merely stating that the joints involved were not listed. Further, the Veteran has reported pain in both hands and his right shoulder. As such, functional impairment as a result of pain without and underlying diagnosis should also have been considered by the VA examiner pursuant to Saunders v. Wilkie, 885 F.3d 1356 (Fed. Cir. 2018). Additionally, the Board finds that the medical opinions provided in January 2020 are also inadequate for adjudication purposes. In this regard, the examiner's opinion is based heavily on the flawed examination findings that there is no current disability, to include functional impairment resulting from pain. Further, the examiner relied on an absence of in-service notations regarding the hands and right shoulder, and failed to consider the Veteran's lay statements regarding the onset and continuity of his symptoms. Therefore, the Board finds that the development conducted does not adequately comply with the April 2019 Board remand directives. 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, the Veteran should be afforded new VA examinations to determine the nature and etiology of any currently present right shoulder and hand disabilities. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding, pertinent VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present right and/or left hand disabilities. The claims file must be made available to, and reviewed by the examiner. Any indicated test and studies must be performed, to specifically include diagnostic imaging and laboratory testing. Based on the examination results and review of the record, the examiner must first identify all right and/or left hand disabilities present during the pendency of the appeal, or proximate thereto, to specifically include inflammatory arthritis and functional impairment resulting from pain. Then, for each identified disability, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability had its onset during the Veteran's active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. A detailed rationale must be provided for all opinions expressed. The examiner should not that a lack of in-service notations of a hand disability is not a sufficient basis to support a negative opinion. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present right shoulder disability. The claims file must be made available to, and reviewed by the examiner. Any indicated test and studies must be performed, to specifically include diagnostic imaging and laboratory testing. Based on the examination results and review of the record, the examiner must first identify all right shoulder disabilities present during the pendency of the appeal, or proximate thereto, to specifically include inflammatory arthritis and functional impairment resulting from pain. Then, for each identified disability, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any such disability had its onset during the Veteran's active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the Veteran's lay statements regarding the onset and continuity of his symptoms. A detailed rationale must be provided for all opinions expressed. The examiner should not that a lack of in-service notations of a shoulder disability is not a sufficient basis to support a negative opinion. 4. Confirm that the VA examination reports and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. (Continued on the next page) 5. Then, readjudicate the appeal. if a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate opportunity for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Ivan Franklin 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.