Citation Nr: 24015481 Decision Date: 04/10/24 Archive Date: 04/10/24 DOCKET NO. 18-31 198 DATE: April 10, 2024 ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1980 to July 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. As a brief history, in January 2023, the Board found that the development conducted by the RO did not comply with the prior February 2020 Board remand. In that remand, the Board directed the RO to obtain a VA medical opinion. In September 2020, the VA examiner opined that the Veteran's right and left shoulder disabilities were less likely than not incurred in or caused by his active service. In support of this opinion, the examiner noted the Veteran's in-service trauma in which he "hurt or scratched" his left shoulder in June 1983. The examiner found that the injury appeared to be self-limiting as evidenced by normal shoulders at the Veteran's June 1983 separation examination. Additionally, the examiner stated that there was no documentation, nexus, or continuing medical records supporting that the Veteran's left shoulder disability resulted in his current disability. The examiner noted that there was a large gap in care with no additional complaints or treatment for shoulder conditions until the Veteran's motor vehicle accident (MVA) in 2014. The Board found that the examiner failed to consider the Veteran's lay statements regarding the continuity of his symptoms since his active service. Furthermore, the examiner's rationale was based upon an inaccurate factual premise that there was no documentation of a left shoulder disability until his MVA in 2014. Specifically, the Board took judicial notice that private medical records showed that the Veteran dislocated his left shoulder in January 2006. The Board noted that compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitated remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). The claims were remanded in January 2023 for an addendum VA medical examination. However, the Veteran failed to report for the scheduled VA medical examination and the RO proceeded to deny the claims based on the evidence of record. In a March 2024 Post-Remand Brief, the American Legion stated that the Veteran did not receive notification of the VA medical examination appointment and noted that there was not a copy of correspondence to the Veteran on record. As such, the Board finds that good cause (for missing a scheduled appointment) has been shown and that another remand is warranted to provide the Veteran with another opportunity to undergo a VA medical examination. A complete record upon which to decide the claim affords the Veteran every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159, see also Stegall v. West, 11 Vet. App. 268, 271(1998). The Board reminds the Veteran that he has a duty to cooperate in the development of his claims, and his failure to report for any scheduled VA medical examination in the future without explanation may result in the denial of his claims. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA medical examination to determine the nature and etiology of the Veteran's right and left shoulder disabilities. Any indicated studies should be performed. The Board notes that the claims folder must be provided to and reviewed by the examiner for all post-remand cases per AOJ policy. See VBA Manual M21-1, Part IV.i.2.A.8.b. Thus, the examiner must specifically note that the claims folder was received and reviewed in the body of the examination report. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right and left shoulder disabilities are etiologically related to his active service. In forming the opinion, the examiner must discuss the Veteran's lay report regarding the continuity of his symptoms prior to his MVA in 2014 and private medical record evidence that the Veteran dislocated his left shoulder in January 2006. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination reports and medical opinions provided comport with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Matthew Leahy, 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.