Citation Nr: 21023212 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-22 734 DATE: April 20, 2021 REMANDED Entitlement to a rating higher than 20 percent for left shoulder tendonitis with degenerative joint disease of the left ACL joint, labral tear, and partial tear of the supraspinous tendon (rotator cuff) (left shoulder disability) is remanded. REASONS FOR REMAND The Veteran had active duty service from January 1977 to December 1979. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2019 decision, the Board denied the issue currently on appeal. Thereafter, the Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In an April 2020 Joint Motion for Partial Remand (JMPR), the parties agreed to a vacatur and remand of the claim, stating that the Board failed to provide adequate reasons and bases for its findings and conclusion relative to the medical evidence of pain on palpation, use, flare-ups, and weakness, as indicated in the August 2016 VA examination report, relative to the range of motion findings therein. In October 2020, the Board remanded the claim for further development, to include obtaining a new VA examination. The Veteran was afforded a VA examination in December 2020. VA also obtained a separate addendum opinion clarifying the diagnosis of the left shoulder the same month. Both reports have been associated with the electronic claims file. Entitlement to a rating higher than 20 percent for left shoulder disability is remanded. The Board finds that remand is required. In this case, the Veteran asserts VA did not fulfill its duty to assist by providing him an adequate VA examination in compliance with the October 2020 Board remand because a gauge (e.g. goniometer) was not used during December 2020 VA examination. See Third Party Correspondence (February 2021). Although the Veteran was afforded a new VA examination in compliance with the October 2020 Board remand, the Board notes that the December 2020 examination report does not indicate that a goniometer was used for range of motion testing. Range of motion findings must be obtained using a goniometer. The purpose of a goniometer is to assist in more precise measurements of motion. A goniometer is defined as “indispensable” by VA regulations. See 38 C.F.R. § 4.46. Use of a goniometer is required for measurement of initial ROM and observed repetitive use. Without confirmation of the use of a goniometer, the examination report is of little probative value. Accordingly, to ensure VA has met its duty to assist, remand is necessary for new examination. 38 C.F.R. § 3.159(c). The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician, different from the examiner that conducted the August 2016, February 2020 or December 2020 examinations, to determine the current severity of his service-connected left 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. (a.) The examiner must clearly indicate whether a goniometer is used during the examination. (b.) 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). (continued next page) Note- Use of a goniometer is required for measurement of initial ROM and observed repetitive use but is not required in providing ROM with repeated use over time or during flare-ups. A. Zenzano Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pendleton, N. 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.