Citation Nr: 22040173 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 14-27 374 DATE: July 13, 2022 REMANDED Entitlement to service connection for right rotator cuff tear secondary to service connected bilateral shoulder dislocation is remanded. Entitlement to service connection for left shoulder bursitis secondary to service connected bilateral shoulder dislocation is remanded. Entitlement to an evaluation in excess of 20 percent for service-connected recurrent left shoulder dislocation is remanded. Entitlement to an evaluation in excess of 20 percent for service-connected recurrent right shoulder dislocation is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corp from September 2002 to March 2005. This matter comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Veteran's appeal was previously before the Board in June 2018 and February 2021, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating the appeal. In pertinent part, the Board's February 2021 remand noted that the issues of service connection for a right rotator cuff tear and left shoulder bursitis were part and parcel of the appealed issues seeking increased evaluations for the service connected bilateral shoulder dislocations. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). The Board ultimately determined that remand was necessary to obtain adequate medical opinions addressing the etiology of these disabilities under the theory of secondary service connection, and readjudication of the intertwined issues seeking increased evaluations was deferred. Consequent to the Board's February 2021 remand, the Veteran was scheduled for VA shoulder examinations in May 2021 and January 2022; however, he failed to report for these appointments. In a March 2022 letter, the AOJ conveyed that the Veteran did not want to participate in the scheduled examinations due to "concerns for the pandemic;" however, the file is otherwise devoid of the Veteran's expression of this sentiment. In April 2022, the AOJ sent the Veteran and his representative another letter, requesting that he inform VA how and/or if he wanted to proceed. Critically, the AOJ stated that the postponed examinations would be rescheduled "[o]nce the pandemic has officially ended," and that VA would "hold your claim for now" if no response was received. Neither the Veteran nor his representative responded to this letter and, contrary to the AOJ's April 2022 letter, his appealed issues were readjudicated in a Supplemental Statement of the Case, which continued to deny such. The Veteran's appealed issues have been transferred back to the Board. While acknowledging the AOJ's efforts in furtherance of completing the Board's February 2021 remand directives, the Board cannot find that the actions outlined above equate to substantial compliance. Pertinently, while the Veteran did not participate in the VA examinations scheduled downstream from the Board's remand directives, it is unclear why the necessary medical opinions were not obtained based on a clinician's review of the file. Accordingly, the Board concludes that another remand is necessary. Lastly, the Board observes that the Veteran's file is devoid of any filing or submission from the Veteran or his representative since prior to the Board February 2021 remand. To this point, the Veteran is reminded that VA's duty to assist is not a one-way street, and further non-response and/or inaction on their part may result in a finding that the appealed issues have been abandoned. 38 C.F.R. § 3.158; Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the Veteran and his representative are encouraged to cooperate with the AOJ's efforts in furtherance of substantially completing the Board's remand directives. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA shoulder examination to address the nature and severity of the bilateral shoulder disabilities. The examiner is asked to address the following: a. The examiner shoulder complete a thorough physical examination of the Veteran's shoulders and address the severity of the each of the shoulder disabilities. b. The examiner must provide opinions addressing whether the Veteran's diagnosed right rotator cuff tear and/or left shoulder bursitis are at least as likely as not caused or aggravated by the service-connected shoulder dislocations. *In addressing the above, the examiner is advised that a recent precedential case clarified that secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. Ward v. Wilkie, 31 Vet. App. 233 (2019). All opinions expressed must be accompanied by a fully stated rationale citing to the medical principles and evidence within the Veteran's file, including his competent and credible lay statements, underlying each conclusion reached. *The Veteran and his representative are encouraged to cooperate with the AOJ's efforts to substantially complete the Board's remand directives, as failure to do so may result in a negative outcome in these matters. 2. If the Veteran is unwilling or unable to report for the scheduled VA examination, the AOJ must transfer his file to a VA clinician who, after review of such, must provide the medical opinions outlined in subpart (b), above. 3. Thereafter, the AOJ must readjudicate the Veteran's appealed issues in light of the totality of evidence of record. If any benefit sought is not granted to the fullest extent, the AOJ must provide the Veteran and his representative with a copy of the readjudication and afford them an appropriate period to respond. E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.