Citation Nr: 20046869 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 10-26 899 DATE: July 13, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for low back strain with mild degenerative joint disease for the period from August 17, 2009 to May 9, 2017, in excess of 20 percent for the period from May 9, 2017 to April 10, 2018, and in excess of 10 percent thereafter is remanded. Entitlement to service connection for a migraine headache disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1982 to August 2003. This matter came before the Board of Veterans Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A January 2017 Board decision remanded the appeal so that a Board hearing could be scheduled, however the Veteran and his attorney withdrew that hearing request in an April 2017 written statement. A January 2018 Board decision granted service connection for PTSD and remanded the issues of service connection for migraine headache, left knee and left wrist disabilities and an increased rating for low back strain. A July 2017 rating decision increased the rating for the low back disability from 10 to 20 percent effective May 9, 2017. A November 2018 rating decision then decreased the low back rating from 20 to 10 percent effective April 10, 2018. A February 2019 rating decision found that the July 2017 decision to assign a 20 percent evaluation for low back strain from May 9, 2017 was a clear and unmistakable error and assigned a 10 percent evaluation from April 10, 2018. Because higher ratings for this disability are assignable during the relevant time period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). A November 2018 rating decision granted service connection for left wrist tendonitis and left knee patellofemoral pain syndrome. As this constituted a complete grant of the issues on appeal, they are not before the Board. The Board notes that the Veteran has a pending increased rating appeal regarding his service connected PTSD and filed a September 2019 notice of disagreement in the modernized review system. It will therefore not be addressed in this Legacy system appeal but will be adjudicated in a separate decision. 1. Entitlement to an initial rating in excess of 10 percent for low back strain with mild degenerative joint disease for the period from August 17, 2009 to May 9, 2017, in excess of 20 percent for the period from May 9, 2017 to April 10, 2018, and in excess of 10 percent thereafter is remanded. A March 2020 VA examination evaluated the severity of the Veteran’s low back disability. However, while the examiner noted pain and stated that pain caused functional loss, the examiner did not note the point at which pain began. This does not allow the Board to properly assess the functional impairment caused by the disability. A new examination is therefore required to provide the required joint testing for pain. 2. Entitlement to service connection for a migraine headache disability The AOJ last adjudicated the issue of service connection for a psychiatric disability in a November 2018 Supplemental Statement of the Case (SSOC). The April 2020 SSOC solely addressed the issue of an increased rating for the low back. Since the issuance of the November 2018 SSOC, additional VA treatment records noting headache symptoms have been added to the claim file. A waiver of AOJ review was not submitted for those records. Accordingly, remand is necessary for the AOJ to consider the new evidence of record and issue an SSOC. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in 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. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, 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.