Citation Nr: 25004485 Decision Date: 04/02/25 Archive Date: 04/02/25 DOCKET NO. 14-39 935 DATE: April 2, 2025 REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to a disability rating in excess of 30 percent for right shoulder degenerative joint disease, postoperative, status-post dislocation is remanded. INTRODUCTION The Veteran had active service in the U.S. Army from May 1970 to May 1973. When this case was previously before the Board in June 2023, the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND Though inexcusable, the Board finds further identical development is again required before the Veteran's claims are decided. The Board has previously explained 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). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the June 2023 remand, the RO was instructed to obtain VA examinations and medical opinions from an examiner who was competent to assess the severity of the Veteran's right shoulder disability, as well as the etiology of the Veteran's cervical spine and bilateral pes planus disabilities. Although the RO obtained an additional VA shoulder examination in July 2023, as well as an addendum examination report in February 2024, the examiner failed to provide all indicated rating criteria. In particular, the Board informed the RO that to be considered adequate, a musculoskeletal examination must include an assessment of a veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). The July 2023 examiner failed to provide these important evaluation criteria, to specifically include both weight bearing and non-weight bearing range of motion assessments. The Board also acknowledges a recent decision in which the Court of Appeals for Veterans Claims (Court) held applicable diagnostic codes and special regulations pertaining to musculoskeletal disabilities do not explicitly contemplate medication use, and as such, VA must discount the beneficial effects of medication when assigning an evaluation of a musculoskeletal disability. See Ingram v. Collins, No. 23-1798, slip op. at 10 (Vet. App. March 12, 2025). In sum, this requires examiners expressly consider and discount the beneficial effects of medication when evaluating musculoskeletal disabilities, to specifically include a discussion of whether a veteran may experience additional functional impairment, to include range of motion loss, without the use of medications. Additionally, the RO was instructed to obtain thorough medical opinions addressing the Veteran's neck and bilateral foot disabilities. In particular, the Board observed that although the Veteran's May 1970 entrance examination indicated his feet were normal, he subsequently reported to podiatry in July 1970 with severely painful arches. He was assessed as having severe pes planus at that time. Despite obtaining opinions from four separate examiners, the RO has yet to obtain a single opinion which is supported by a cogent rationale. For example, the July 2023 examiner provided an addendum medical opinion in February 2024, which chronicles random medical history reports, but is generally incomprehensible. She provided an additional medical opinion in April 2024, which chronicles indistinct facts but provides no explanation for how or why the examiner came to her conclusion. Noting these deficiencies, the RO attempted to obtain a third opinion from this examiner in August and November 2024; however, the examiner's remarks are both factually inaccurate and fully unsupported by a rationale. The RO then asked for medical opinions from a second examiner, which were provided in November 2024. This time, the RO obtained single word answers to whether the Veteran's disability was incurred in service and/or existed prior to service. Again, no rationale was provided to support the examiner's opinions. The RO then obtained additional opinions from two additional examiners in November 2024. The first examiner concluded the Veteran's disability existed prior to service, but was not aggravated therein. In this respect, the examiner found "no sign of aggravation" in service, but wholly failed to acknowledge or discuss the fact that the Veteran's condition was asymptomatic on entrance, and then assessed as severe two months into his tour of active duty. The second examiner found it would be speculative to provide an opinion in this matter, but failed to explain how or why that was so. These same examiners provided medical opinions addressing the Veteran's cervical spine disability, which were fraught with factual inadequacies and were wholly unsupported by considered and scientifically supported rationales. Based on the foregoing insufficiencies, the Board finds the RO failed to provide the requisite assistance in this matter and has not ensured compliance with the prior remand directives. As such, this case must be remanded. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran a VA examination by an Orthopedic Specialist with sufficient expertise, who has not previously examined this Veteran, to determine the nature and etiology of the Veteran's claimed bilateral pes planus. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should answer the following questions with respect to the Veteran's pes planus disability: a) is the Veteran's current pes planus as least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) the same foot condition that was present in service; b) if so, did the disability clearly and unmistakably pre-exist the Veteran's entry into active service; and c) if so, did the disorder clearly and unmistakably undergo no chronic increase in severity during active duty service? The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent and credible reports relative to his foot manifestations. If the examiner finds the Veteran's disability clearly and unmistakably existed, but was not aggravated during active service, the examiner should state the specific evidence used in forming this opinion. If the examiner is unable to provide any requested opinions, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Also, afford the Veteran a VA examination by an Orthopedic Specialist with sufficient expertise, who has not previously examined this Veteran, to address the etiology of the Veteran's claimed cervical spine disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion as to whether it is least as likely as not (likelihood is approximately balanced or nearly equal, if not higher) the Veteran's current cervical spine disability: a) originated during the Veteran's period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected right shoulder disability; or c) was worsened by his service-connected right shoulder disability. The examiner must provide a complete rationale for all proffered opinions. The examiner must discuss and consider the Veteran's competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Finally, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected right 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 the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. Further, the examiner is asked to consider and expressly state whether the Veteran would experience additional functional impairment-to include range of motion loss-without his use of medications. If so, the examiner should provide an estimate of the additional impairment, if possible, in degrees of additional motion loss. (Continued on the next page) ? 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 Fraser, Gordon 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.