Citation Nr: 18149030 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-24 037 DATE: November 8, 2018 ORDER An initial rating in excess of 20 percent for chronic tension headaches is denied. An initial rating in excess of 30 percent for degenerative arthritis and metatarsalgia, bilateral feet, status post stress fractures with left foot pes planus (hereinafter “bilateral foot disability”) is denied. REMANDED An initial rating in excess of 10 percent for degenerative joint disease and musculotendinous strain of the lumbar spine (hereinafter “lumbar spine disability”) prior to November 15, 2016, and in excess of 20 percent thereafter, is remanded. FINDINGS OF FACT 1. The Veteran’s chronic tension headaches are not manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability at any time during the period on appeal. 2. The Veteran’s bilateral foot disability is not manifested by pronounced symptoms, including marked pronation, extreme tenderness of the plantar surfaces, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances, at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for chronic tension headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.124a, Diagnostic Code 8100 (2017). 2. The criteria for an initial rating in excess of 30 percent for a bilateral foot disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5276 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1993 to August 1993. These matters are on appeal from May 2015 rating decisions. Jurisdiction over these matters is with the Regional Office (RO) in Reno, Nevada. The Board notes that the Veteran has also appealed a December 2016 rating decision that denied entitlement to service connection for a psychiatric disorder and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). However, in his May 2018 substantive appeal, the Veteran requested a hearing on these issues before a member of the Board. As a hearing has not yet been held, those issues will not be addressed herein; they will be adjudicated separately by the Board after the requested hearing has been completed. During the pendency of this appeal, in a November 2017 rating decision, the RO assigned a 20 percent rating for the lumbar spine disability, effective November 15, 2016. As this increase does not represent a full grant of the benefit sought, the claim for a higher initial rating for a lumbar spine disability remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Duties to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA’s duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating disabilities of the musculoskeletal system, VA may consider granting a higher rating in cases where the veteran experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, when those factors are not contemplated by the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The diagnostic codes predicated on limitation of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Id. at 41. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. See 38 C.F.R. §§ 4.40, 4.45; Mitchell, 25 Vet. App. at 37. The United States Court of Appeals for Veterans Claims (Court) has issued recent relevant decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopedic examinations. The Court in Correia 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." In this regard, the Board observes that although feet are comprised of bones, joints, and tendons and by nature, involve weight-bearing, the Veteran’s bilateral foot disability is rated pursuant to Diagnostic Code 5276 which is not premised on specific ranges of motion. See 38 C.F.R. § 4.71 (a). Moreover, as discussed below in more detail, although some other foot diagnostic codes are partially predicated on limitation of ankle dorsiflexion, none of those diagnostic codes are applicable to this Veteran's foot disability, as the Veteran either does not have or is not service-connected for the applicable disability, or would not receive a higher compensation rating if that particular diagnostic code were applied given the facts of this case. The 2016 VA examiner also reported the Veteran’s description of the symptomatology he experiences with flare-ups and the examiner described the functional impairment during those occasions. Accordingly, the Board finds that notwithstanding the holdings of Correia and Sharp, the most recent VA examination in November 2016 assessing the severity of the Veteran's bilateral foot disability is adequate for rating purposes. The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the lay and medical evidence, for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, it does not have to discuss each piece of evidence in detail. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996).   1. Entitlement to an initial rating in excess of 20 percent for chronic tension headaches The Veteran has claimed entitlement to an initial higher rating for his service-connected chronic tension headaches. He contends that he is entitled to a higher rating because his headaches have continued to worsen in severity and his symptoms are not adequately contemplated by his currently assigned rating. The Veteran’s chronic tension headaches are currently rated 30 percent disabling under Diagnostic Code 8100 for migraine headaches, with a 10 percent reduction for headaches that preexisted military service, resulting in a 20 percent disability rating. Under Diagnostic Code 8100, a maximum 50 percent rating is assigned for migraines characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average of once a month over the last several months. Id. The Board notes that the terms “very frequent” and “completely prostrating,” contained in the diagnostic criteria, are not defined by VA regulations, nor has the Court defined them. Moreover, VA regulations also do not define “economic inadaptability.” The Court has noted that nothing in Diagnostic Code 8100 requires the Veteran to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). With regard to lay evidence, the Court has held that lay evidence may be probative of the frequency, prolongation, and severity of headaches. See Pierce, 18 Vet. App. at 445. The Court has recently held that 50 percent criterion of “completely” prostrating attacks necessarily subsumes the 30 percent criterion of “characteristically” prostrating attacks based on the plain meaning of the words, and that the phrase “very frequent,” while inexact, connotes a frequency greater than the 30 percent required once a month. Johnson v. Wilkie, No. 16-3808, 2018 U.S. App. Vet. Claims LEXIS 1253, at *16 (Sept. 19, 2018). Further, the Court noted that the use of the conjunctive “and” before “prolonged” makes clear that the headaches must be both “very frequent,” long in duration, and productive of economic inadaptability. Id. Accordingly, DC 8100 contains successive rating criteria, as each disability level builds on another in terms of duration and frequency and requires that a veteran rated at a higher level satisfy all of the requirements of the lower levels. The Court held further, that "[c]haracteristic" is "a trait, quality, or property or a group of them distinguishing an individual, group, or type”, and that "[p]rostrating" means "lacking in vitality or will: powerless to rise: laid low", citing Webster’s Third New International Dictionary of the English Language Unabridged 376 (1966) (Webster’s). Id. The Court stated further, that difference between the 50 percent disability rating and the lower disability ratings is that “completely” modifies “prostrating headaches” in the 50 percent rating while “characteristic” modifies “prostrating headaches” in the lower ratings; and “[c]ompletely” is defined as “to complete degree: entirely”, again citing to Webster’s. Id. The Court noted that this change signals that the nature of the headaches for the 50 percent criteria is more severe than that for the lower ratings and that the relevant feature of the 50 percent rating is that the headache attacks must be “completely prostrating.” Id. The Court concluded that “[i]n other words, the headaches must render the veteran entirely powerless”. Id. Finally, the Court noted that the phrase “very frequent” found in the criteria for the 50 percent rating connotes a frequency greater than once a month, which is enumerated in the 30 percent rating level, and once every 2 months, which is enumerated for the 10 percent, and because the 50 percent rating requires “very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability,” the use of the conjunctive “and” makes clear that the headaches must be long in duration. Id. In this regard, the Court observed that Webster’s defines “[p]rolong”as “to lengthen in time: extend duration: draw out: continue, protract.” Id. The Board has utilized these common definitions in evaluating the Veteran’s claim. The Veteran underwent a VA examination in April 2015. Upon examination, the Veteran reported experiencing headaches characterized by pulsating or throbbing head pain on both sides of the head that worsens with physical activity. These headaches last less than one day in duration. He reported taking over-the-counter pain medication for his headache pain. The examiner determined that the Veteran has characteristic prostrating attacks of headache pain with a frequency of once every month. The examiner determined that the Veteran does not have very prostrating and prolonged attacks of headache pain productive of severe economic adaptability. The examiner remarked that the Veteran’s headache disability impacts his ability to work by making it difficult for him to do his job as a security guard. VA treatment records show that in August 2015, the Veteran reported to his primary care physician that he suffers intermittent headaches once or twice per week. He described experiencing global headaches that start in the frontal area and throb. He reported that he had one of these headaches that morning which was an “8 out of 10” in severity, but that after a dose of Tylenol, the headache was reduced to a “1 out of 10.” In his December 2015 notice of disagreement, the Veteran contended that he has weekly to daily migraines with prolonged attacks that have caused job loss and severe economic inadaptability to the point that he currently lives in a motel because he cannot maintain gainful employment. The Veteran underwent another VA examination in November 2016. Upon examination, the Veteran reported that his headaches have worsened in frequency and pain intensity since his April 2015 VA examination. He reported having headaches about once per week and taking over-the-counter pain medication for his headache pain. The Veteran described his headaches as constant, pulsating or throbbing head pain on both sides of his head, which worsens with physical activity. The examiner determined that the Veteran has characteristic prostrating attacks of headache pain with a frequency of once every month. The examiner determined that the Veteran does not have very prostrating and prolonged attacks of headache pain productive of severe economic adaptability. The Veteran stated that he was currently unemployed, partly due to his headaches. He stated that he would be able to do a part-time sedentary job if it were not too stressful. In a February 2018 statement, the Veteran challenged the adequacy November 2016 examination, arguing that the examiner was dismissive when he reported that he had headaches up to four days per week and that he had missed work due to his headaches at least once or twice per month. The Veteran also stated that he has lost jobs in the past due to his headache disability. Upon review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against assigning a disability rating in excess of 20 percent for chronic tension headaches. As noted above, to be eligible for the next higher disability rating of 50 percent, the Veteran’s headaches must be characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Board accepts the Veteran’s competent lay assertions of experiencing headaches as often as four times per week. However, the competent lay and medical evidence of record does not establish that these headaches are completely prostrating. The evidence does not support, and the Veteran has not alleged, that when he experiences headaches his symptoms are so severe as to render him totally incapable of engaging in ordinary, daily activities. In fact, the Veteran has reported to his VA examiners and clinicians that he is usually, though not always, able to alleviate his symptoms by taking over-the-counter pain medications such as Tylenol. The Veteran’s employment activities are also not consistent with a finding of very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In this regard, the evidence does not establish that the Veteran’s headaches are of sufficient severity to prevent him from maintaining substantially gainful employment. The record establishes that the Veteran last worked in August 2016 in a customer service call center. He reported to the November 2016 examiner that he was unemployed “partly due to his headaches.” However, elsewhere in the record, the Veteran has also stated that he is unable to work due to his other service-connected disabilities, including lumbar spine and bilateral foot disabilities, as well as a nonservice-connected psychiatric condition. In his February 2018 statement, the Veteran reported that he had missed work due to his headaches at least once or twice per month. The Veteran also alleged that he has lost jobs due to his headaches, however, he did not provide any further detail or evidence to substantiate this contention. Although the Veteran’s reported work history and complaints of frequent headaches demonstrate that his headache disability has had some impact on occupational functioning, the Board does not find that this impact most nearly approximates severe economic inadaptability. Although the Veteran’s reported headaches are “very frequent” in nature, occurring more than once a month, the Board finds that the reported one or two days per month missed from work due to headaches does not constitute “severe” economic inadaptability. Based on the foregoing, the Board finds that the Veteran’s headaches are “very frequent.” However, the preponderance of the evidence does not support a showing that his headaches are “completely prostrating.” Finally, although the Veteran’s headaches do cause a degree of functional impairment, there is no persuasive evidence that his headaches cause “severe economic adaptability.” As noted, because of the successive nature of the rating criteria under Diagnostic Code 8100, the evaluation for each higher disability rating includes the criteria of each lower disability rating. See Johnson v. Wilkie, supra. Although, in this case, there is evidence of “very frequent” headaches, each of the criteria listed in the 50 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that if disability rating criteria are written in the conjunctive, as they are here, “a Veteran must demonstrate all of the required elements in order to be entitled to that higher evaluation” and 38 C.F.R. § 4.7 cannot be used to circumvent the need to demonstrate all required criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). In essence, despite a showing of very frequent headaches, absent a credible showing of headaches that are also completely prostrating and prolonged and productive of severe economic inadaptability, there is no basis to assign a 50 percent rating under Diagnostic Code 8100. In making this determination, the Board has considered the Veteran’s contention that the November 2016 VA examination was inadequate because the examiner was “dismissive” when the Veteran reported experiencing headaches up to four days per week and losing jobs in the past due to his headaches. In reviewing the November 2016 examination report, the Board finds no clear evidence that the VA examiner did not conduct the examination in an appropriate manner. Thus, in the absence of clear evidence to the contrary, the Veteran’s unsupported contentions are insufficient to render the examination inadequate. In reaching the above conclusion, the Board acknowledges that the Veteran sincerely believes that his disability is more severe than his assigned rating reflects. The Board notes that the Veteran is competent to testify to the presence of observable symptoms, such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). In this case, the Veteran is also competent to testify as to the frequency, prolongation, and severity of his headaches. See Pierce, 18 Vet. App. at 445. However, he is not competent to report that his chronic tension headaches are of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, while the Board has carefully considered the lay statements of record and given them appropriate weight where they are consistent with the objective medical evidence of record, the Board has accorded greater weight to the objective evidence of record, and the most probative medical evidence has shown that the Veteran’s chronic tension headaches are not of sufficient severity to warrant a 50 percent disability rating at any time during the period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against finding that an initial rating in excess of 20 percent for chronic tension headaches is warranted. Therefore, the benefit-of-the-doubt rule does not apply and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 2. Entitlement to an initial rating in excess of 30 percent for a bilateral foot disability The Veteran contends that he is entitled to a higher initial rating for his service-connected bilateral foot disability because his symptoms are more severe than contemplated by his currently-assigned 30 percent rating. The Veteran’s bilateral foot disability is rated by analogy under the criteria for acquired flatfoot. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Pursuant to Diagnostic Code 5276, pronounced bilateral flatfoot is rated 50 percent disabling with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances. A 50 percent rating is the maximum schedular rating for disabilities of the feet. 38 C.F.R. § 4.71a. Separate rating criteria are available for weak foot, claw foot, metatarsalgia, hallux valgus, hallux rigidus, hammer toes, malunion/nonunion of the tarsal and metatarsal bones, and other foot injuries. 38 C.F.R. § 4.71a, Diagnostic Codes 5277-5284. However, only claw foot provides for a disability rating in excess of 30 percent. As the Veteran has not been shown to have this condition, a discussion regarding his eligibility for an increased rating under any other diagnostic code is not warranted. The Veteran underwent a VA examination in April 2015. Upon examination, the Veteran reported pain with ambulation in his feet that is worsened with prolonged standing and walking. The Veteran was found to have accentuated pain on use and manipulation, predominately affecting his left foot. There was no indication of swelling on use. The Veteran was not found to have extreme tenderness of plantar surfaces, decreased longitudinal arch height, or objective evidence of marked deformity or pronation in either foot. The Veteran did not have marked inward displacement or severe spasm of the Achilles tendon on manipulation, nor did he have inward bowing. At an August 2015 VA primary care visit, a history of stress fractures involving the feet was noted and the Veteran reported that he “is doing well with over-the-counter shoe inserts.” At a May 2016 VA podiatry examination, the Veteran reported that his bilateral foot pain had recently been exacerbated due to increased walking after he had to give up his car. Upon examination, the Veteran was noted to have an out-toed gait and a left-sided limp. He had decreased medial longitudinal arch height bilaterally that diminished with weight-bearing. The Veteran reported experiencing foot pain of “5 out of 10,” and there was no loss of sensation to the bilateral plantar foot surfaces. The Veteran was dispensed foot orthotics, after which he reported increased comfort in his feet and his limp was noted to have resolved. The Veteran underwent another VA examination in November 2016. Upon examination, the Veteran reported that his bilateral foot pain has worsened in severity and frequency since his last VA examination in April 2015. He reported experiencing flare-ups if he stands for more than a few minutes and worsening pain with activity. Shoe inserts have helped “somewhat.” The Veteran described a functional loss due to being unable to walk longer than 10 to 15 minutes at a time before having to stop and rest. The Veteran was found to have pain accentuated on use in both of his feet. He has pain accentuated on manipulation in the left foot. There was no indication of swelling on use. The Veteran was noted to use built-up shoes and orthotics for both feet, with pain not relieved. The Veteran has decreased longitudinal arch height on weight-bearing in the left foot. There was no objective evidence of marked deformity or marked pronation. The Veteran does not have inward bowing, marked inward displacement, or severe spasm of the Achilles tendon on manipulation. Factors noted to contribute to functional loss are pain on weight-bearing and nonweight-bearing, disturbance of locomotion, interference with standing, and lack of endurance in both feet. A December 2016 VA podiatry note reports that the Veteran’s foot pain has improved since receiving foot orthotics in May 2016. He reported that pain develops in his left foot following prolonged walking, but that the pain decreases with rest. Once started, the pain lasts all day, and at its worst, is a “10 out of 10” in intensity. After a thorough review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against assigning a disability rating in excess of 30 percent for a bilateral foot disability. Although the Veteran reports experiencing constant and, at times, severe pain in his feet, particularly after prolonged standing and walking, there is no objective evidence that the Veteran’s bilateral foot disability rises to the level of “pronounced.” In this regard, the Veteran’s feet have not been shown to have marked pronation, extreme tenderness of plantar surfaces, or marked inward displacement and severe spasm of the Achilles tendon on manipulation, not improved by orthopedic shoes or appliances, at any time during the period on appeal. Therefore, the criteria for a 50 percent disability rating are not met. In reaching the above conclusion, the Board acknowledges that the Veteran sincerely believes his symptoms to be more severe than contemplated by his currently-assigned 30 percent disability rating. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of pain and other symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). While the Board has considered the lay statements of record including the Veteran’s report of flare ups if he stands for more than a few minutes and worsening pain with activity, the Board has given them appropriate weight where they are consistent with the objective medical evidence of record and as confirmed by the VA examiners. However, the Board has accorded greater weight to the objective evidence of record as VA clinicians and examiners have the requisite medical training and expertise to make complex medical determinations. Therefore, the medical evidence is more probative regarding the Veteran’s claim in this case, and the most probative medical evidence has shown that the Veteran’s bilateral foot disability is no more than 30 percent disabling during the entire period on appeal. Accordingly, the Board finds that the preponderance of the evidence is against finding that an initial rating in excess of 30 percent for a bilateral foot disability is warranted. Therefore, the benefit-of-the-doubt rule does not apply and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. REASONS FOR REMAND 3. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability prior to November 15, 2016, and in excess of 20 percent thereafter is remanded. The Veteran has claimed entitlement to an initial higher rating for his service-connected lumbar spine disability. He contends that he is entitled to a higher rating because his back pain continues to worsen in severity and impedes his ability to work and perform everyday activities. The Veteran has been afforded VA examinations in connection with his claim for an increased rating in April 2015 and in November 2016. Although there was normal range of motion with pain on examination in April 2015, it did not result in or cause functional loss. The examiner opined that it is feasible that during flare-ups or repetitive use, the Veteran could suffer a limitation in the functional ability of the lumbar spine in the form of loss of range of motion. However, the examiner stated that it is not feasible to estimate an actual numerical degree of limitation as it would be mere speculation to do so. This is due to the fact that there are several factors that could impact the Veteran’s day-to-day range of motion, and there is no current medical and scientific basis for accurately calculating this additional range of motion loss. On VA examination in November 2016, some limitation of motion was demonstrated on active motion. The examiner was unable to estimate any additional functional impairment due to flare-ups or repetitive use over time without resorting to mere speculation. The examiner listed the same reasons for this as the April 2015 VA examiner. While much of the examination report is adequate and in compliance with governing legal criteria, the examination report does not contain passive range of motion measurements pursuant to the Court’s directives in Correia, supra. Remand is needed for a new VA examination with more thorough findings in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint). The examiner should also ensure continued compliance with the guidance in Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). This matter is remanded to for the following action: Schedule the Veteran for a VA examination to determine the current severity of degenerative joint disease and musculotendinous strain of the lumbar spine. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of the Veteran’s low back disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel