Citation Nr: 21040049
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 14-17 671
DATE: July 2, 2021

REMANDED

Entitlement to an initial disability rating in excess of 20 percent for a left shoulder strain with arthritis is remanded. 

INTRODUCTION

The Veteran served on active duty from May 2000 to August 2000, June to July 2001, May 2002 to December 2002, and June 2004 to May 2005. 

In March 2017, the Veteran attended a hearing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record. 

When this case was previously before the Board in January 2018, December 2019, October 2020, and March 2021 the above-noted issue was remanded for additional development.  It has since been returned to the Board for further appellate review. 

REASONS FOR REMAND

The above-noted claim must again be remanded in order to ensure compliance with the prior Board remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  On numerous prior occasions the Board has indicated that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, to date, substantial compliance with these Board instructions has not been achieved.

As noted in the Board's January 2018, December 2019, October 2020, and March 2021 remands, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  The Veteran underwent another VA shoulder examination in May 2021 following the Board's most recent March 2021 remand.  However, the examiner again failed to provide a range of motion assessment in both weight bearing and non-weight bearing.  Therefore, this examination contains the same fatal deficiencies noted in the prior VA examinations, and a remand is necessary to obtain an examination that satisfies sufficiency standards. 

Accordingly, the case is REMANDED for the following action:

Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected left shoulder disability.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated studies should be performed. 

Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments.

In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of any flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost.

If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Fraser, 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.