Citation Nr: 20041346 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 13-14 954 DATE: June 17, 2020 ORDER Entitlement to a 20 percent rating, but no higher, for residuals of left ankle fracture posterior aspect medial with grade II sprain (left ankle condition) is granted. Entitlement to a rating in excess of 10 percent for lumbar spondylosis, previously diagnosed as back strain (back condition), prior to April 26, 2018, and in excess of 20 percent thereafter is denied. REMANDED Entitlement to service connection for migraine headaches, to include as secondary to service-connected lumbar spondylosis, previously diagnosed as back strain (back condition) and/or medications taken for service-connected back condition, is remanded. FINDINGS OF FACT 1. The Veteran’s left ankle condition was manifested by marked limitation of motion. 2. Prior to April 26, 2018, the Veteran’s back condition was not manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less; or the combined range of motion of the thoracolumbar spine limited to 120 degrees or less; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. From April 26, 2018, the Veteran’s back condition was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for left ankle condition have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5299-5271 (2018) 2. The criteria for a rating in excess of 10 percent for back condition, prior to April 26, 2018, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5237 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1993 to July 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2003 and July 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, and St. Petersburg, Florida. The Board remanded this matter in January 2018. The Board finds there has been substantial compliance with its January 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) Increased Rating Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to a rating in excess of 10 percent for residuals of left ankle fracture posterior aspect medial with grade II sprain (left ankle condition) The Veteran asserts that his left ankle condition is more severe than a 10 percent disability rating under Diagnostic Code 5299-5271. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. See 38 C.F.R. § 4.27 (2018). The residual condition (to which the Veteran’s service-connected residuals of a left ankle fracture is rated by analogy) is limitation of motion, which is evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Diagnostic Code 5271 assigns a 10 percent disability rating for moderately limited range of motion of the ankle and a 20 percent disability rating for markedly limited range of motion of the ankle. The words slight, moderate, marked, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Pursuant to VA regulations, normal range of motion for ankle dorsiflexion is 0 to 20 degrees and for plantar flexion is 0 to 45 degrees. See 38 C.F.R. § 4.71a, Plate II. The Board must also consider whether the Veteran is entitled to separate or higher disability ratings under other Diagnostic Codes that relate to the ankle. See 38 C.F.R. 4.71a, Diagnostic Codes 5270 through 5274. Under Diagnostic Code 5003, degenerative arthritis, established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. In a May 2003 VA examination, the Veteran reported symptoms of pain and swelling, which happened constantly. He said he took Motrin and Vicodin. The Veteran reported functional impairment described as inability to walk for a long period of time, drive, or take shift for a long period of time. Upon examination, there was no evidence of edema, varicose veins, clubbing, or cyanosis. There were no residuals of frostbite. There was no heat, redness, swelling, effusion, drainage, abnormal movement, instability, or weakness of any joint. The general appearance of ankles was normal. Range of motion was normal. There was no DeLuca issue. In an addendum associated with the examination, the examiner gave further range of motion findings: dorsiflexion to 20 degrees; plantar flexion to 45 degrees. Range of motion was not additionally limited by pain, fatigue, weakness, incoordination, or lack of endurance. Examination of the feet only revealed slight tenderness on palpation; however, the statement given in the original report was corrected as there was no evidence of disturbed circulation, weakness, or atrophy of musculature or painful motion. In a November 2003 VA treatment record, the Veteran complained of ankle pain and swelling since 1995 status post injury. The Veteran said at times his entire left foot would swell. In a January 2004 VA treatment record, the Veteran was followed up about his ankle pain. The Veteran reported increased aching of his ankles. There was no swelling noted. Range of motion was 0 degrees dorsiflexion and 15 degrees plantar flexion. In an April 2004 VA examination, the Veteran described his left ankle symptoms as pain, off and on swelling, and difficulty with climbing and kneeling. This happened on a constant basis. Functional impairment was described as difficulty with prolonged standing, walking, and running. Upon examination, general appearance of the ankles was normal bilaterally. Range of motion was the following: dorsiflexion to 20 degrees and plantar flexion to 45 degrees. Range of motion was additionally affected by pain on dorsiflexion to 15 degrees and plantar flexion to 35 degrees. Range of motion was not affected by fatigue, weakness, lack of endurance, or incoordination. In a March 2008 VA examination, the Veteran described his left ankle symptoms as weakness, stiffness, swelling, heat, redness, buckling, lack of endurance, locking, fatigability, and dislocation. Treatment consisted of medication and elastic bandage. Pain was constant and traveled to his feet. The pain was described as crushing, aching, sticking, squeezing, oppressing, cramping, burning, and sharp. The pain was spontaneous but also produced by physical activity. Pain was relieved by medication. He said he had to observe complete bedrest. The Veteran said he wore a brace for the pain in his ankles and knees. Upon examination, there was tenderness. There was no heat, redness, swelling, effusion, drainage, abnormal movement, instability or weakness. There was no deformity of the ankles or ankles. Range of motion was the following: dorsiflexion to 20 degrees with pain at 20 degrees and plantar flexion to 40 degrees with pain to 40 degrees. Pain was the predominant issue involving the left ankle after repetitive use. Fatigue, weakness, and lack of endurance were also issues involving the left ankle after repetitive use. There was no additional limitation in range of motion after repetitive use. There was no malunion of the os calcis or malunion of the astragalus bilaterally. In an April 2012 VA examination, the Veteran did not report any flare ups. Upon examination, range of motion was the following: plantar flexion to 45 degrees or greater with no objective evidence of painful motion; plantar dorsiflexion to 20 degrees or greater with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing without additional limitation in range of motion. There was no functional loss or functional impairment. There was no localized tenderness or pain on palpation. There was no ankylosis. There were no shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus (os calcis) or talus (astragalus), or talectomy (astragalectomy). The Veteran did not use any assistive devices. In an April 2017 VA treatment record, the Veteran said his ankle sometimes swelled and was painful. He said he had CSI in the past which made it better. Upon examination, range of motion was intact. There was very slight swelling in the left ankle. There was tenderness located in bilateral ankles. In a May 2018 VA examination, the examiner said that the diagnosis was changed and was a progression of the previous diagnosis. It had now progressed to develop chronic pain in the ankle and limited range of motion. The Veteran reported flare ups where his ankle swelled and he needed assistance from a walking stick. He could not stand or walk for long distances. Functional loss was described as being unable to run or jump. Upon examination, range of motion was the following: dorsiflexion to 10 degrees and plantar flexion to 35 degrees. Range of motion itself did not contribute to functional loss. Pain was noted at all ranges of motion but did not cause functional loss. There was no evidence of pain with weight bearing. There was objective evidence of diffuse tenderness around the joint. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time. The examiner described his findings as the following: dorsiflexion to 5 degrees and plantar flexion to 25 degrees. The Veteran was not examined during a flare up and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss during flare up. Pain significantly limited functional ability with flare ups. The examiner described his findings as the following: dorsiflexion to 5 degrees and plantar flexion to 25 degrees. The examiner noted that there was less movement than normal and stated contributing factors were described as pain and reduced range of motion. There was no muscle atrophy. There was no ankylosis. The Veteran did not have shin splints, stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of calcaneus, or talectomy. The Veteran used a brace and cane regularly. There was objective evidence of pain on passive range of motion and pain on non-weight bearing testing. As there are no findings of ankylosis, subastragalar or tarsal joint ankylosis, malunion of the os calcis or astragalus, or astragalectomy, separate ratings are not warranted under Diagnostic Codes 5270, 5272, 5273, or 5274. Giving the Veteran the benefit of the doubt, and considering the overall evidence of record, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran’s left ankle condition. As stated above, the rating schedule provides for a 20 percent rating when there is marked limited motion of the ankle. Here, at the May 2018 VA examination, range of motion showed dorsiflexion to 10 degrees and plantar flexion to 35 degrees. Upon repetitive use and flare ups, range of motion showed dorsiflexion to 5 degrees and plantar flexion to 25 degrees. The examiner noted that the Veteran’s left ankle condition was a progression of his previous diagnosis. The Board also notes that the Veteran uses a brace and a cane regularly for his left ankle and the Veteran complained of pain and swelling. Therefore, the Board finds that there is marked limitation of motion. Thus, a 20 percent disability rating, but no higher, for the left ankle condition is warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a rating in excess of 10 percent for lumbar spondylosis, previously diagnosed as back strain (back condition), prior to April 26, 2018, and in excess of 20 percent thereafter The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. The Veteran asserts that his back condition is more severe than a 20 percent disability rating under Diagnostic Code 5237. Under Diagnostic Code 5237, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Prior to April 26, 2018 In a May 2003 VA examination, the Veteran said the pain in his back was associated with stiffness. He reported that he had difficulty with turning and felt stinging pain and spasm. The Veteran said he had flare ups daily. During a flare up, he could not run, jump, or stand for a long period of time. The pain radiated to his thighs and legs. Functional impairment was described as inability to stand for a long period of time, walk, or run. He said he was able to brush teeth, cook, walk, shower, climb stairs, shop, and drive a car. However, he had difficulty with vacuuming, gardening, taking out the trash, and pushing a lawnmower because bending and standing for a long period of time gave him pain. He was employed as a computer technician. Upon examination, posture was normal with no abnormal kyphosis or lordosis. There was paravertebral muscle tenderness with no spasm. There was no radiation of pain on movement. There was no sign of radiculopathy present. Range of motion was normal. Range of motion was additionally affected by mild pain on flexion of 80 degrees and extension of 30 degrees. In an addendum associated with the examination, the examiner mentioned additional range of motion findings: flexion to 95 degrees with pain at 80 degrees; extension to 35 degrees with pain at 30 degrees; right and left lateral flexion to 40 degrees; and right and left rotation to 35 degrees. Range of motion was affected by pain, but not fatigue, weakness, incoordination, or lack of endurance. In a November 2003 VA treatment record, the Veteran said his back pain was worse with bending over and in the morning with stiffness. He said it would take about 3 hours before the pain decreased somewhat, but overall lasted all day. He said NSAIDs helped prior to worsening flare and Vicodin decreased the pain. In a February 2004 VA treatment record, it was noted that there was back pain on palpation generally over the lower back. There was decreased flexion noted. In an April 2004 VA examination, the Veteran said that the pain in his back was constant and radiated to his left side. He described the pain as aching, sharp, and sometimes cramping. He rated the pain as 8 out of 10. Pain was elicited by physical activity and sometimes by coughing, sneezing, pushing, and defecation. The pain was relieved by rest and medication. At times of pain, the Veteran said he could not function fully. He had not been recommended by a physician to have bed rest for his back condition. Functional impairment included difficulty bending fully. Upon examination, there was paravertebral muscle tenderness with mild spasm. There was no radiation of pain on movement. Range of motion was the following: flexion to 90 degrees; extension to 30 degrees; right and left lateral flexion to 30 degrees; and right and left rotation to 30 degrees. Range of motion was additionally affected by pain with the following noted: flexion to 80 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees. Range of motion was not affected by fatigue, weakness, lack of endurance, or incoordination. There was no bowel, bladder, or erectile dysfunction reported. In a March 2008 VA examination, the Veteran described his back pain as constant and travelled down his right leg. The pain was described as crushing, aching, squeezing, sticking, oppressing, burning and sharp. Pain was spontaneous and also produced by physical activity. Pain was relieved by rest, medication, and lying on his back. He said he had to observe complete bedrest. The Veteran said the back pain was accompanied by stiffness and pain radiating to his right lower extremity. Upon examination, the spine appeared normal. There was no radiation of pain on movement. There was no muscle spasm. There was tenderness between L1 and L5 in the midline and to the right and left at these levels. The lumbar spine was not in a fixed position. Range of motion was the following: flexion to 63 degrees with pain at 63 degrees; extension to 19 degrees with pain at 19 degrees; right lateral flexion to 8 degrees with pain to 8 degrees; left lateral flexion to 30 degrees with pain at 30 degrees; right rotation to 30 degrees with pain at 30 degrees; and left rotation to 20 degrees with pain at 20 degrees. Pain was the predominant issue involved in the back condition after repetitive use. Fatigue, weakness, and lack of endurance were also issues involving back after repetitive case. There was no additional limitation in range of motion after repetitive use. There was normal curvature and pain radiating from his back down the right lower extremity. In an April 2012 VA examination, the Veteran did not report flare ups. Upon examination, range of motion was the following: forward flexion to 90 degrees or greater with no objective evidence of painful motion; extension to 0 degrees with no objective evidence of painful motion; right and left lateral flexion to 30 degrees or greater with no objective evidence of painful motion; and right and left lateral rotation to 30 degrees or greater with no objective evidence of painful motion. The Veteran was able to perform repetitive use testing without additional limitation of range of motion. The Board notes that range of motion for extension post-test was 30 degrees or greater, which shows normal extension unlike the first finding. There was no functional loss or functional impairment. There was no localized tenderness or pain to palpation. There was no muscle spasm or muscle atrophy. There was no radiculopathy. The Veteran did not have IVDS. There were no assistive devices used. In an April 2013 statement, the Veteran said he received epidural shots and nerve medicine for his back pain. In an August 2015 VA treatment record, the Veteran complained of low back pain and was evaluated for injections. The pain was described as aching and exacerbating factors included standing, morning stiffness, and prolonged walking. Relieving factors included medication and resting. The Veteran reported radiation down to his buttocks. The Veteran said he had injections in 2012 that helped “a lot” for 4 months. Upon examination, there was no tenderness to palpation. The Veteran had full range of motion with pain at flexion. In an April 2017 VA treatment record, the Veteran reported back pain included morning stiffness. He said NSAIDs had not helped in the past. From April 26, 2018 In a May 2018 VA examination, the Veteran stated that his condition had gotten worse and he had issues with long distances and bending to tie his shoes. He said “while in the restroom it hurts.” He utilized a walking stick and suffered from chronic pain. He said he took medication. The Veteran reported flare ups and said he had issues getting up in the morning and took pani medication 3 times per day. The Veteran said the pain went down his right leg. The Veteran also reported functional loss which consisted of issues with intimacy, changing clothes, walking, and sitting for long periods of time. He said it was affecting his level of concentration and mental health. Upon examination, range of motion was the following: forward flexion to 50 degrees; extension to 15 degrees; right and left lateral flexion to 15 degrees; and right and left lateral rotation to 20 degrees. Range of motion itself did not contribute to a functional loss. Pain was noted on exam at all ranges of motion but did not result in functional loss. There was no evidence of pain with weight bearing. There was objective evidence of lumbosacral paraspinal tenderness. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time. The examiner described this in terms of range of motion as the following: forward flexion to 40 degrees; extension to 5 degrees; right and left lateral flexion to 5 degrees; and right and left lateral rotation to 10 degrees. The examiner stated that the examination was not conducted during a flare up and the examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare up. Pain significantly limited functional ability with flare ups. The examiner described this in terms of range of motion as the following: forward flexion to 40 degrees; extension to 5 degrees; right and left lateral flexion to 5 degrees; and right and left lateral rotation to 10 degrees. There was no guarding or muscle spasm. The examiner determined that there was less movement than normal due to ankylosis, limitation or blocking, adhesions, etc., and described the additional contributing factors as pain and less range of motion. There was no muscle atrophy. There was no radiculopathy. There was no ankylosis. The Veteran did not have IVDS. The Veteran used a brace and cane regularly for his left ankle pain. There was objective evidence of pain on passive range of motion testing and pain on non-weight bearing testing. Post-service treatment records show treatment for his back condition; however, there is no evidence that the Veteran’s disability warrants a higher rating greater than 10 percent prior to April 26, 2018, and greater than 20 percent from April 26, 2018. The Board initially notes that the Veteran complained of radiating pain. However, the evidence consistently shows no evidence of radiculopathy. Therefore, a separate rating for radiculopathy will not be considered. Additionally, although the Veteran stated at the March 2008 VA examination that he had to observe bedrest, the Board notes that there is no diagnosis of IVDS at any time throughout the appeal period. Therefore, an increased rating based on IVDS will not be considered. Overall, the Board finds that the probative and competent evidence of record does not show that the Veteran’s back condition warrants a rating in excess of 10 percent prior to April 26, 2018, and in excess of 20 percent thereafter. As stated above, the rating schedule provides for a 20 percent rating with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The rating schedule provides for a 40 percent rating with forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Prior to April 26, 2018, the Veteran’s examinations showed forward flexion to, at worst, 63 degrees. There was no guarding or muscle spasm. From April 26, 2018, the Veteran’s examinations showed forward flexion to, at worst, 40 degrees due to pain with repetitive use and flare ups. There was no ankylosis. Throughout the entire period of appeal, the Board has considered, along with the schedular criteria, the Veteran’s functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Thus, a rating in excess of 10 percent prior to April 26, 2018, and in excess of 20 percent thereafter for the Veteran’s back condition is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy, 27 Vet. App. at 495; Doucette, 38 Vet. App. at 369-70. REASONS FOR REMAND Entitlement to service connection for migraine headaches, to include as secondary to service-connected lumbar spondylosis, previously diagnosed as back strain (back condition) and/or medications taken for service-connected back condition is remanded. In a May 2018 VA examination, it was noted the Veteran had a migraine diagnosis. The Veteran said this condition began from a parachute jump. He said he fell and bumped his head. In a separate May 2018 VA opinion, the examiner opined that the Veteran’s migraines were less likely than not proximately due to his service-connected condition. The examiner reasoned that there was documentation of headache in separation exam, but no details or diagnosis given. The Veteran was seen in VA clinic for headache in 2012 and treated with Zomig. There was no documentation of neurological evaluation. The Veteran’s back and ankle conditions were due to musculoskeletal pain. This did not cause migraine headaches. The examiner stated that migraine was a vascular headache and etiology of a migraine was varied; the etiology of it did not include lumbar strain or ankle fracture and ankle strain. The examiner further opined that the Veteran’s migraine headaches were not at least as likely as not aggravated beyond its natural progression by service-connected condition. The examiner provided the same rationale used above. The Board finds the May 2018 VA examination inadequate for several reasons. First, during the examination, the Veteran asserted that he fell and bumped his head during a parachute jump in service. Thus, the Veteran has indicated that his migraine headaches are directly related to service, and an opinion on the theory of direct service connection is needed. Second, the examiner indicated that headaches were noted upon separation from service; however, service treatment records are silent for complaints, treatment, or diagnosis of headaches. Therefore, the examiner’s rationale includes an inaccurate statement, making the opinion based on an inaccurate factual premise. Finally, the examiner did not consider the Veteran’s VA treatment records that the headaches began when he started taking medication for his back in 2003, and the September 2006 VA treatment record which indicated the Veteran had been diagnosed with migraines and was told his headaches were migraines or possibly referred pain from his back. The examiner has not provided an opinion on cause or aggravation of the Veteran’s back medication on his migraine headaches. Therefore, on remand, a new VA opinion should be obtained to determine whether the Veteran’s migraine headaches condition was directly related to service, or caused or aggravated by his medication taken for the service-connected back condition. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from an appropriate examiner to determine the etiology of the Veteran’s migraine headaches. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the examiner must determine the following: (a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s migraine headaches are related to service. (b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s migraine headaches are caused or aggravated by the Veteran’s medications taken for the service-connected back condition. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. A clear rationale must be provided for all opinions expressed. The examiner must consider the Veteran’s lay statements that he hit his head during a parachute jump. The examiner must also consider the Veteran’s VA treatment records that the headaches began when he started taking medication for his back in 2003, and the September 2006 VA treatment record which indicated the Veteran had been diagnosed with migraines and was told his migraines were related to his back pain. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown, 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.