Citation Nr: 21030911 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 10-04 988 DATE: May 20, 2021 ORDER An initial rating in excess of 10 percent for residuals of a gunshot wound of the right ankle is denied. From November 15, 2006 to January 3, 2021, an initial 20 percent rating, but no higher, for residuals of a gunshot wound, muscle group XI, is granted. From January 4, 2021, an initial rating in excess of 20 percent for residuals of a gunshot wound, muscle group XI, is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent for DDD of the cervical spine is remanded. FINDINGS OF FACT 1. The Veteran's residuals of a gunshot wound to the right ankle are not manifested by marked limitation of motion. 2. Throughout the claim period, the Veteran's residuals of a gunshot wound, muscle group XI, most nearly approximated a moderately severe disability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for residuals of a gunshot wound to the right ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.71a, Diagnostic Code 5271. 2. From November 15, 2006 to January 3, 2021, the criteria for a separate 20 percent rating, but no higher, for residuals of a gunshot wound, muscle group XI, were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.56, 4.73, Diagnostic Code 5311. 3. From January 4, 2021, the criteria for a rating in excess of 20 percent for residuals of a gunshot wound, muscle group XI, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.56, 4.73, Diagnostic Code 5311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision. In February 2013 and March 2015, the Board remanded this matter for additional development, specifically to schedule the Veteran for a hearing. In June 2020, the Board, inter alia, remanded this matter for additional development, specifically to schedule the Veteran for new VA examinations for his service-connected lumbar spine, cervical spine, and right ankle disabilities. The Board acknowledges that the Veteran has requested a Board hearing with respect to the issues on appeal. As mentioned above, the matter was remanded in February 2013 and March 2015 to schedule the requested hearing as the Veteran works and resides in Germany. The Agency of Original Jurisdiction (AOJ) scheduled and rescheduled him for eight Board hearings that he failed to attend. Most recently, in December 2018, the Veteran's representative requested that the Veteran be rescheduled for his requested hearing. In an undated letter, the Board found that the Veteran has not shown good cause to be scheduled for another hearing. See 38 C.F.R. § 20.702. As such, the Board will proceed with review of the claims. During the course of this appeal, the AOJ granted a separate rating for the Veteran's gunshot wound residuals of the right lower extremity based on impairment of muscle group XI. See September 2010 and January 2021 Rating Decisions. Increased Ratings Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities and muscle injuries under 38 C.F.R. §§ 4.71a and 4.73 were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, to the extent the relevant diagnostic codes are affected, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. By way of factual background, the Veteran's service treatment records indicate that he injured his right ankle and right calf as a result of an accidental gunshot wound in July 1982. The Veteran continued to receive follow-up care and treatment for open wounds and infections related to the gunshot wound from 1982 to 1983. In correspondence dated November 2006, the Veteran reported that while on active duty, he suffered an accidental gunshot wound and almost lost his leg. He also reported he had undergone resulting "bouts of severe infections," skin grafts, severe tissue loss, muscle damage, scarring, and numbness. On VA examination in April 2007, the Veteran reported that he accidentally suffered an injury by shooting himself in the right lower leg, leading to a complicated healing process, including a skin transplant. The Veteran reported he was unable to play sports, and could only walk, stand, or sit for 60 minutes. On examination, the Veteran had an unrestricted and fluent gait, without pathological movement components and/or gait deficits. He was able to complete squatting and standing on toes and heels with support. He had instable standing on one leg and needed support. On examination of the ankle joints, the Veteran had no pain on pressure. The achilles tendon was also unremarkable, without swellings and/or areas painful on pressure. Minor prominence of hallux proximal joint, with unrestricted mobility of toes was noted. Passive, active, and repeat flexion of the right ankle joint was to 35 degrees. No pain was noted on range of motion testing. The Veteran was able to perform heel and toe standing, but the examiner noted that the shot injury made one leg standing difficult. Foot pulse on both sides was palpable. The gunshot wound and secondary wound did not heal quite satisfactorily at the exterior side of the right lower leg. The Veteran also had functionally reduced stress capability and mobility. The Veteran was diagnosed, inter alia, with status post lower leg soft tissue injury on right (gunshot), permanent soft tissue defect, and scar hardening; multiple metal splinters in soft tissue parts; and, beginning ankle joint-talocalcaneal joint arthrosis on right. In a lay statement dated February 2010, the Veteran reported that he was unable to flex his right ankle to the extent that he did during the last VA examination. He also reported that the "skin has drawn up to limit the flexing of the ankle and skin around the ankle." He stated he had painful and limited ankle motion, which caused him to limp and walk slowly. On a March 2010 VA joints examination, the Veteran reported he had surgery to his lower leg and a skin grafting in connection with his gunshot wound. He complained of numbness of his right ankle and occasional pain in his right lower leg with prolonged standing after 30 minutes. He stated he was not seeing any health care provider for his right ankle condition. On examination, right ankle pain was noted. No deformity, giving way, instability, stiffness, weakness, incoordination, decreased speed of joint motion, episodes of dislocation, subluxation, locking, effusions, inflammation, flare-ups, tenderness, instability, or tendon abnormality was noted. The Veteran's right ankle disability did not affect the motion of the joint. Strength on right ankle dorsiflexion and right ankle plantar flexion was 5/5. Right ankle jerk reflex was normal. The Veteran was able to stand for 15 to 30 minutes and walk more than a quarter of mile but less than a mile. He used no assistive devices/aids. Right ankle dorsiflexion was to 10 degrees and right ankle plantar flexion was to 35 degrees. No objective evidence of pain with active motion was noted. Pain was noted following repetitive motion, but no additional limitation after three repetitions of range of motion was noted. No ankylosis was present. During the examination, the examiner also described a muscle injury associated with the Veteran's gunshot wound residuals. The injury affected the triceps surae (gastrocnemius and soleus). The examiner indicated there was sometimes pain associated with the injury, but no current symptoms of decreased coordination, fatigability, weakness, or uncertainty of movement, and reported that muscle function was normal in terms of comfort, endurance, and strength sufficient to perform activities of daily living. However, the examiner noted that the circumference of the Veteran's right calf was 3 centimeters (cm) smaller than the left leg and that he could not stand on his right leg alone. The examiner described the wound as a through and through injury with intermuscular scarring. An x-ray of the Veteran's right ankle showed deformity of the distal fibula compatible with old trauma and degenerative changes, and numerous metallic foreign bodies along the ankle laterally. The examiner diagnosed the Veteran with traumatic arthritis of the right ankle status post gunshot wound. Regarding occupational effects, the examiner reported the Veteran's right ankle disability did not cause any significant effects and noted that the Veteran continued to work at the golf shop in Germany. The examiner also noted the Veteran reported he had not been able to run or play any sports except golf since his right ankle injury. The Veteran was able to travel and spent half of the year in Germany and the other half of the year in Florida. During a January 2021 ankle conditions examination, the Veteran complained of constant right ankle pain, that was "aching to entire [right] ankle." The Veteran rated his pain as 6/10. He reported he had surgery to the right ankle to repair the gunshot wound in 1982, but had no other surgery and took no pain medications. He indicated he had flare-ups that resulted in increased, sharp pain, which increased to a 9/10 while walking. The Veteran reported that his pain was relieved when he sat down. He also complained of difficulty with prolonged walking and standing. Range of motion testing of the right ankle revealed dorsiflexion to 10 degrees and plantar flexion to 20 degrees. Evidence of pain that caused functional loss was noted on dorsiflexion and plantar flexion, as well as pain with weightbearing and objective evidence of crepitus. It was indicated there was objective evidence of pain on non-weightbearing, and that passive range of motion was the same as that found on active range of motion. Pain was also noted on passive range of motion on dorsiflexion and plantar flexion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Repetitive range of motion testing resulted in no additional loss of function or loss of range of motion. The examiner indicated that pain significantly limited functional ability with repeated use over a period of time and during a flare-up. The examiner estimated that such did not result in a loss of range of motion with repeated use over a period of time. The examiner estimated that plantar flexion was limited to 15 degrees during a flare-up as a result of pain. Difficulty with prolonged walking and standing was noted as an additional contributing factor of the Veteran's right ankle disability. Right plantar flexion and right dorsiflexion muscle strength was 4/5 (active movement against some resistance). The examiner noted there was no evidence of muscle atrophy or ankylosis. The examiner noted the Veteran had a scar on the right lateral ankle, which measured 26 cm x 0.1 cm. The scar was not painful or unstable and did not measure a total area equal to or greater than 39 square cm (6 square inches). The Veteran used no assistive devices. With regard to occupational impact, the examiner found that the Veteran had difficulty with prolonged walking and standing. The examiner also determined that there was no change in the Veteran's right ankle disability. During a January 2021 muscle injuries examination, the examiner again noted an injury to muscle group XI, described as penetrating. The examiner reported there were no scars or known fascial defects associated with the injury and noted that it did not affect muscle substance or function. Regarding cardinal signs and symptoms, the examiner reported loss of power, weakness, and fatigue and/or pain. The examiner described the functional impact of the injury as difficulty with prolonged walking and standing. Regarding the onset and course of the injury, the Veteran reported that the condition had stayed the same since onset. 1. An initial rating in excess of 10 percent for residuals of a gunshot wound to the right ankle is denied In April 2008, VA granted service connection for residuals of a gunshot wound to the right ankle ("right ankle disability") and assigned a 10 percent rating under Diagnostic Code 5271, limited motion of the ankle, effective November 15, 2006. 38 C.F.R. § 4.71a. The Veteran generally asserts that this assigned rating does not adequately reflect the severity of this disability, but he has not offered specific argument. Following review of the evidence of record, a higher initial rating for the Veteran's right ankle disability is not warranted at any point during the claim period. Prior to the regulatory change, under Diagnostic Code 5271, a 10 percent rating was warranted for moderate limited motion of the ankle and a 20 percent rating was warranted for marked limited motion of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. The terms "moderate" and "marked" are not defined in VA regulations prior to the regulatory change, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. As of February 7, 2021, under the amended criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion). A maximum 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion). 38 C.F.R. § 4.71a, Diagnostic Code 5271. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). In this case, the evidence indicates that, under both the old and new criteria, the Veteran's current 10 percent rating for moderate limited motion most closely approximates the functional impairment associated with his right ankle disability. At worst, the Veteran's right ankle dorsiflexion was limited to 10 degrees and his right ankle plantar flexion was limited to 15 degrees during the claim period. The Board has considered the Veteran's reports of pain, numbness, bouts of infections, inability to play sports aside from golf, and difficulty with prolonged walking and standing as a result of his service-connected right ankle disability. However, the Veteran was able to perform repetitive-use testing with no additional range of motion loss at the March 2010 and January 2021 examinations. Moreover, the Veteran's ankle strength was noted to be 4/5 at worst. The Veteran's current 10 percent rating under Diagnostic Code 5271 contemplated such painful, though moderate, limitation of motion of the ankle. See Mitchell v. Shinseki, 25 Vet. App. 32, 38, 43 (2011) (stating, "pain itself does not rise to the level of functional loss;" "pain must affect some aspect of the normal working movements of the body...in order to constitute functional loss;" and "painful motion alone is not [the equivalent of] limited motion" (internal quotation marks omitted)); Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (disability occurs "if a veteran cannot perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance" (citing 38 C.F.R. § 4.40)). The Board also considered the January 2021 examiner's finding that the Veteran had difficulty with prolonged walking and standing, as well as his finding that there was no change in the Veteran's right ankle disability. Although the Veteran maybe believe that his level of impairment warrants a higher rating, and while he is competent to report symptoms and impairments such as pain or difficulty walking and standing (which the Board has considered), he is not competent to make objective medical findings regarding limitation of motion or apply the relevant rating criteria to conclude that his symptoms and impairments constitute "marked" right ankle limitation of motion. Accordingly, the Board affords more weight to the competent, objective medical evidence of record corresponding with the relevant rating criteria than to lay contentions regarding the nature and extent of the Veteran's right ankle disability. The Board has also considered whether a separate compensable rating for scarring resulting from the right ankle gunshot wound is in order. Scarring is rated under 38 C.F.R. § 4.118. Under current diagnostic criteria for scars, a compensable rating requires a scar, not of the head, face, or neck, that is associated with underlying soft tissue damage and that is at least 6 square inches in size; a scar, not of the head, face, or neck, that is not associated with underlying soft tissue damage, of at least 144 square inches; or, a scar that is unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7804. The Veteran's scar on the right ankle is not shown to be unstable or painful, and is less than 6 square inches in size. As such, the scar is not of the size and/or severity to warrant a separate compensable rating. The Board has also considered other potentially applicable diagnostic codes and finds that they do not apply for the following reasons. Diagnostic Codes 5270 and 5272, which apply to ankylosis of the ankle, do not apply because right ankle ankylosis has not been demonstrated by objective, competent medical evidence. To the extent that the Veteran argues that either of these diagnostic codes applies, although he is competent to report ankle symptoms such as pain, he is not competent to self-diagnosis ankylosis. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (defining ankylosis as immobility and consolidation of a joint due to disease, injury, or surgical procedure). While the Veteran has been found to have abnormal and painful range of motion (as discussed above), there is no objective medical evidence showing that his right ankle has ankylosed. Indeed, the above VA examiners affirmatively found no right ankle ankylosis upon examination. Nor is there an indication that flare-ups of symptomatology cause the functional equivalent of ankylosis. The other diagnostic codes applicable to the ankle are Diagnostic Code 5273 (malunion of os calcis or astragalus) and 5274 (astragalectomy). The evidence is against any finding that the Veteran had malunion of os calcis, malunion of astragalus, or astragalectomy at any time during the appeal period. In addition, neither the Veteran nor his representative has alleged any of these conditions. The Board therefore finds that a rating under either Diagnostic Code 5273 or 5274 is unwarranted. The Board finds that the preponderance of the evidence does not support that his service-connected right ankle disability caused marked limitation of motion, contemplated by the prior and current rating criteria. Therefore, the Veteran is not entitled to a rating in excess of 10 percent at any point during the claim period. 2. From November 15, 2006 to January 3, 2021, an initial 20 percent rating, but no higher, for residuals of a gunshot wound, muscle group XI, is granted. 3. From January 4, 2021, an initial rating in excess of 20 percent for residuals of a gunshot wound, muscle group XI, is denied. As discussed above, the AOJ granted a separate rating for the effects of the Veteran's gunshot wound residuals on muscle group XI during the course of this appeal. 38 C.F.R. § 4.73, Diagnostic Code 5311; see also September 2010 and January 2021 Rating Decisions. Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries are classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d). Diagnostic Code 5311 contemplates disabilities to muscles including the posterior and lateral crural muscles and muscles of the calf, including the triceps surae (gastrocnemius and soleus), tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris. The functions of these muscles are propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. Under Diagnostic Code 5311, a slight muscle disability warrants a 0 percent rating, a moderate muscle disability warrants a 10 percent rating, a moderately severe muscle disability warrants a 20 percent rating, and a severe muscle disability warrants a 30 percent rating. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). As relevant here, a moderate muscle disability comprises a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. Objective findings should include entrance and (if present) exit scars; small or linear, indicating short track of missile through muscle tissue; some loss of deep fascia or muscle substance or impairment of muscle tonus; and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56 (d)(2). A moderately severe muscle disability comprises a through and through or deep open penetrating wound by a small high-velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period for treatment of the wound, with a record of consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating track of missile through one or more muscle groups; and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe muscle disability contemplates through and through or deep penetrating wounds due to high-velocity missile, or large or multiple low-velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. There should be a history of hospitalization for a prolonged period for treatment of the wound, with consistent complaints of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings should include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpable loss of deep fascia or muscle substance, or soft flabby muscles in wound area; and abnormal muscle swelling and hardening in contraction; tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. 38 C.F.R. § 4.56 (d)(4). In September 2010, the AOJ granted a separate 10 percent rating for residuals of a gunshot wound effective March 25, 2010, based on the above-discussed findings of the March 2010 examiner. In January 2021, the AOJ increased that rating to 20 percent effective January 4, 2021, based on the above discussed findings of the January 2021 examiner. However, resolving reasonable doubt in the Veteran's favor, the Board finds that the impacts to muscle group XI have most closely approximated a moderately severe injury since November 15, 2006. In that regard, the Veteran described his impairment since onset of the injury as static during his January 2021 examination. Supporting that description are earlier findings during the 2007 and 2010 VA examinations. Specifically, the 2010 examiner observed a through and through wound with intermuscular scarring. Although that examiner did not report most of the cardinal signs and symptoms of muscle disability when prompted by the questionnaire, she did note that the Veteran could not stand on his right leg alone and observed that his right calf was 3 cm smaller than his left. The 2007 VA examiner noted the Veteran's description of a complicated healing process following his in-service gunshot wound, a description that is supported by the Veteran's service treatment records. Specifically, the Veteran's service treatment records document open wounds and infections related to his gunshot wound from 1982 to 1983. Upon examination of the Veteran, the 2007 examiner noted that the gunshot wound and secondary wound did not heal quite satisfactorily on the exterior side to the right lower leg, and noted that the injury made standing on one leg difficult. Finally, the 2007 examiner noted a permanent soft tissue defect with multiple metal splinters. Again, affording the Veteran the benefit of the doubt, the foregoing evidence supports assignment of a 20 percent disability rating for moderately severe muscle injury under Diagnostic Code 5311 throughout the claim period. The evidence does not demonstrate, however, that the Veteran's residuals of a gunshot wound to muscle group XI resulted in a severe muscle injury at any time during the claim period. In that regard, the evidence, to include the medical records and lay statements, does not show the injury type or most of the objective findings that generally constitute severe disability. For example, the January 2021 examiner reported no effect on muscle substance or function and no fascial defects. Additionally, the record does not contain evidence of adhesion of scar to one of the long bones, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile; or induration or atrophy of an entire muscle following simple piercing by a projectile. The record also does not document a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts. In short, even considering the Veteran's self-reported symptomatology, which has generally been limited, the Board finds a rating in excess of 20 percent for residuals of a gunshot wound to muscle group XI is not warranted at any time during the claim period. 38 C.F.R. § 4.73, Diagnostic Code 5311. To the extent that a higher rating than that which has been awarded is requested, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the Board cannot apply that doctrine to award an even higher rating. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for DDD of the cervical spine is remanded 2. Entitlement to an initial rating in excess of 20 percent for DDD of the lumbar spine is remanded The Veteran has a right, as a matter of law, to compliance with remand instructions, and the Board has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the June 2020 remand, the Board directed the AOJ to afford the Veteran VA examinations of the lumbar and cervical spine to assess the current severity of his service-connected lumbar and cervical spine disabilities, to include compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Accordingly, the Veteran was afforded VA examinations for his lumbar and cervical spine in January 2021. The record reflects that the Veteran previously underwent VA examinations for his lumbar and cervical spine in April 2007 and March 2010. In the June 2020 remand, the Board found the March 2010 VA examination inadequate because it did not comply with the requirements set forth by the Correia v. McDonald decision. June 2020 Board Decision; Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). In Correia v. McDonald, the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia interprets 38 C.F.R. § 4.59 to establish additional requirements that must be met prior to finding that a VA examination is adequate. The examination reports dated January 2021 do not reflect that the examiner addressed all of the Correia requirements. Specifically, the January 2021 VA examiner did not provide range of motion measurements of the lumbar and cervical spine in passive motion, instead checking a box indicating that passive range of motion could not be performed or was not medically appropriate. However, the examiner did not provide an explanation as to why such testing could not be performed or was inappropriate. Where a test or opinion cannot be offered, bald statements that a test is not applicable are not sufficient. Instead, the examiner must provide a rationale why the test cannot be performed in the context of the Veteran, his or her disabilities, and the test requested. Indeed, the Board's June 2020 remand instructed the examiner to provide such an explanation. For the foregoing reason, additional opinions are needed to decide these claims. The matters are REMANDED for the following action: (Continued on the next page) Return the claims file to the clinician who conducted the January 2021 cervical and lumbar spine examinations, if available. Following review of the claims file, including the January 2021 medical opinions, the clinician is asked to explain why passive range of motion testing of the cervical and lumbar spine cannot be performed or is not medically appropriate. If the January 2021 examiner is unavailable and a new examination is deemed necessary to address the above question, one should be scheduled. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination reports. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.