Citation Nr: 21075097 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 16-38 878 DATE: December 17, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for a right shoulder strain. REASONS FOR REMAND The Veteran served on active duty from June 2000 to November 2000 and from September 2005 to November 2006. The case is on appeal from a June 2016 rating decision. Most recently, in July 2020 decision, the Board denied an initial rating in excess of 20 percent for a right shoulder strain. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 Joint Motion for Remand (JMR), the parties moved to vacate and remand the Board's decision denying service connection for peripheral neuropathy the right and lower extremities. In an April 2021 Order, the Court granted the JMR and remanded the matter to the Board for further appellate review consistent with the Order. Entitlement to an initial rating in excess of 20 percent for a right shoulder strain. This matter must be remanded for compliance with the Court's August 2021 Order. The parties at the Court agreed in the July 2021 JMR that a remand to the Board was needed because the Board did not ensure compliance with its November 2018 remand instructions by relying on an inadequate VA medical examination and opinion. Specifically, the parties agreed that the March 2020 VA examination was inadequate because, while the examiner stated a goniometer was used to measure range of motion, no measurements for range of motion were reported and the examiner failed to note why weight-bearing measurements were not made. Thus, the examination was not in compliance with Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Therefore, remand for a new VA examination is needed. See Stegall v. West, 11 Vet. App. 268 (1998). In light of the foregoing, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records dated from June 2021. 2. Thereafter, schedule the Veteran for an examination (or a telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected right shoulder disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (Continued on the next page) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, 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.