Citation Nr: 24010348 Decision Date: 03/04/24 Archive Date: 03/04/24 DOCKET NO. 16-24 860A DATE: March 4, 2024 REMANDED Entitlement to service connection for a right shoulder condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1991 to August 1999. By way of history, entitlement to service connection for a right shoulder condition was denied in a July 2022 Board decision. Following the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) issued a May 2023 Joint Motion for Remand (Joint Motion) vacating the denial of service connection and remanding the matter back to the Board for it to take action commensurate with the Court's directives. Specifically, the Court found fault with the Board's reliance on VA examinations and etiology opinions dated in October 2021 and in April 2022, respectively. Upon receipt of the case, the Board in September 2023 further remanded the matter to the Agency of Original Jurisdiction (AOJ) for it to secure a new examination to evaluate the nature of the right shoulder condition as well as an addendum opinion addressing the likely etiology of the claimed right shoulder condition. Following the issuance of an October 2023 supplemental statement of the case continuing the denial of service connection for a right shoulder condition, and the return of the matter to the Board, the Board promulgated a January 2024 remand which yet again returned the case to the AOJ for it to carry out the directives outlined in the September 2023 remand directives that were not complied with. Most recently, the AOJ in January 2024 issued a supplemental statement of the case once again denying service connection for a right shoulder condition. Unfortunately, the Board does not find that its prior remand directives were complied with. Specifically, the Board requested that the AOJ afford the Veteran an in-person examination with imaging to determine the exact nature of the claimed right shoulder condition. Furthermore, the AOJ was instructed to secure an opinion from the chosen examiner addressing the likely etiology of the claimed right shoulder condition, to include explicit discussion of the potential relationship between the right shoulder condition and the service-connected left foot, left knee, and left ankle conditions. Upon receipt of the case, the AOJ scheduled the Veteran for a VA examination on January 23, 2024, as evidence by correspondence posted on January 15, 2024. There is no indication from the record that the Veteran did not receive this correspondence. Nevertheless, a memorandum dated January 23, 2024, indicates that the Veteran did not appear for the scheduled examination. The AOJ then issued the above-mentioned January 2024 supplemental statement of the case continuing the denial of service connection for a right shoulder condition, and referenced the missed examination and the fact that the Veteran did not provide any explanation for his failure to appear for that examination. The Board of course acknowledges that, under 38 C.F.R. § 3.655(b), when a Veteran fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. To date, the Veteran has not provided VA with any justification for his failure to appear for the scheduled examination on January 23, 2024, nor has he requested that this examination be rescheduled. Nevertheless, although the Board recognizes that it specifically requested that the Veteran be scheduled for an in-person examination to evaluate the nature and likely etiology of the claimed right shoulder condition, the ultimate purpose of the requested examination was to procure an opinion regarding the likely etiology of the claimed condition. Such an opinion does not require an in-person evaluation, as the Board has sufficient documentation of a current diagnosed condition and the question of the likely etiology of the right shoulder condition can be analyzed without any additional information that would be procured from an in-person examination. As such, the Board finds that remand is necessary in order to schedule the Veteran for a new VA examination to evaluate the nature of the claimed right shoulder condition and furthermore to procure an etiology opinion as previously requested in the January 2024 remand directives, which are copied in large part below. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a qualified physician to determine the nature and etiology of his right shoulder condition. If a physician is not available, such should be noted, and the examination should be conducted by another appropriate clinician. The examiner must review the claims file and a copy of this remand. Any diagnostic imaging deemed appropriate to ascertain the Veteran's current right shoulder condition should be conducted. If none is necessary, the examiner should state so in the examination report. The examiner is asked to first confirm whether the Veteran has a right shoulder condition. If no in-person evaluation is possible, the examiner should refer to available medical records documenting diagnoses and treatment for a right shoulder strain. If a diagnosis is deemed inappropriate, the examiner must provide a thorough rationale to support such a conclusion with an explicit discussion of the medical evidence in support of the diagnosis, that is, the history of reported right shoulder symptomatology. The examiner is reminded that the requirement of a "current" diagnosis is satisfied if the Veteran exhibits sufficient symptomatology to warrant such a diagnosis at any point during the pendency of the appeal. Regardless of whether the Veteran appears for an in-person examination or not, the examiner must provide an opinion as to whether it is at least as likely as not (an approximate balance of positive and negative evidence) that a right shoulder condition is related to the Veteran's active service. In setting forth this opinion, the examiner should also fully consider the Veteran's competent testimony regarding his experiencing such symptomatology following service. In addition, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that any diagnosable right shoulder condition was caused or aggravated by the service-connected left foot, left knee, and/or left ankle conditions.? More specifically, the Veteran contends that his service-connected left ankle, foot, and knee disabilities caused a fall in December 2010 which resulted in a right shoulder injury, and that he has had pain continuously since. The examiner must specifically address whether the Veteran's service-connected left knee, ankle, and foot disabilities caused his fall, and whether this fall caused a right shoulder injury and consequent pain. If the opinion is that the left foot, left knee, and/or left ankle conditions aggravated a right shoulder condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation.????? The Board notes that causation and aggravation are independent concepts and should have separate findings and rationales.? See Atencio v. O'Rourke, 30?Vet. App.?74 (2018).? The examiner is reminded that there is NO requirement of "permanent aggravation"; rather, the question is whether there was aggravation in general.?????? The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. The lay contentions of the Veteran as well as the appellant must be considered in full. 2. Prior to returning this remand to the Board, it is asked that the AOJ review the examiner's opinion report to ensure compliance with the Board's directives outlined above. If those directives are not complied with in full, the AOJ should take all reasonable measures, to include securing yet another addendum opinion, in order to confirm that each component of the Remand instructions are addressed in a comprehensive opinion report. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.