Citation Nr: 21073003 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 08-02 176 DATE: December 7, 2021 REMANDED 1. Entitlement to a rating in excess of 10 percent from September 1, 2005, a rating in excess of 20 percent from May 12, 2012, and a rating in excess of 40 percent from April 7, 2021, for degenerative disc disease (DDD) with arthritis and spondylosis of the thoracolumbar spine (thoracolumbar spine disability), is remanded. 2. Entitlement to a rating in excess of 10 percent for left wrist strain, with a history of fracture, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to August 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2006 Department of Veterans Affairs (VA) rating decision, which, in part, granted service connection for DDD with arthritis and spondylosis of the thoracic and lumbar spine, and for left wrist strain, and assigned an initial 0 percent (noncompensable) rating, effective September 1, 2005, for each disability. In September 2010, the Veteran testified before a Veterans Law Judge who is no longer with the Board; a transcript is in the record. The Veteran was offered the opportunity for another hearing; however, the Veteran did not respond to the Board's correspondence. In an October 2012 rating decision, the AOJ, in part, partially granted the Veteran's claim for a higher rating for DDD of the thoracic and lumbar spine, assigning a 20 percent rating, effective May 16, 2012 (the date of VA examination). Additionally, in a January 2013 rating decision, the AOJ, in part, again partially granted the Veteran's claim for a higher rating for DDD of the thoracic and lumbar spine, assigning a 10 percent rating, effective September 1, 2005. In that January 2013 rating decision, the AOJ also partially granted the Veteran's claim for a higher rating for left wrist strain, assigning a 10 percent rating, effective September 1, 2005. Most recently, in December 2020, the Board remanded the case for further development. In a July 2021 rating decision, the AOJ partially granted the Veteran's claim for a higher rating for DDD of the thoracic and lumbar spine, assigning a 40 percent rating, effective April 7, 2021 (the date of VA examination). Pursuant to the December 2020 Board remand, the Veteran was afforded VA examinations to assess the severity of his back and left wrist disabilities in April 2021. However, the examination findings are not entirely responsive to the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board specifically directed the VA examiners to conduct range of motion testing on both active motion and passive motion and in both weight-bearing and non-weight-bearing, reporting the findings in degrees, pursuant to a decision of the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158, 168(2016). If the examiner was unable to conduct the required testing or concluded that the required testing was not necessary, he or she was directed to clearly explain why that was so. Although active motion range of motion testing of the lumbar spine was conducted and the April 2021 VA examiner indicated that passive range of motion testing could not be performed because it was medically contraindicated due to risk of further injury and not safe at the time, the examiner did not provide range of motion testing results for weight-bearing and non-weight-bearing. The examiner did not provide any reason for why the range of motion on weight-bearing and non-weight-bearing could not be performed. The examination report shows that the Veteran was able to perform repetitive use testing with at least three repetitions. Similarly, with regard to the Veteran's left wrist disability, the April 2021 VA examiner provided active and passive range of motion testing results but did not provide range of motion testing results for weight-bearing and non-weight-bearing. The examiner did not provide any reason for why the range of motion on weight-bearing and non-weight-bearing could not be performed. A remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand. See Stegall, supra. Accordingly, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's increased rating claims, so that he is afforded every possible consideration. The matters are REMANDED for the following actions: Arrange for an orthopedic examination of the Veteran to assess the current severity of his back and left wrist disabilities. The Veteran's claims file must be reviewed by the examiners in conjunction with the examinations. The findings must include reports of range of motion studies for pain on BOTH active and passive motion AND in weight-bearing and non-weight-bearing. [If the back or left wrist cannot be tested on "weight-bearing," the examiner must indicate that such testing cannot be done and explain why that is so.] All opinions must include a complete explanation of rationale, with citation to supporting factual evidence and medical principles. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.