Citation Nr: 21003466 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 10-40 881A DATE: January 21, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for migraine headaches is remanded. Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of a left hip strain is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1987 to February 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. This matter was previously remanded by the Board in October 2017 and December 2018 for further development. 1. Entitlement to an initial rating in excess of 10 percent for migraine headaches is remanded. The Board finds that a new VA examination is warranted to assess the current severity of the Veteran’s service-connected migraine headaches. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). The Veteran has been provided two VA examinations to assess the severity and frequency of the manifestations of this service-connected disability during the e3xtended appeal period, first in April 2009 and again in April 2017. Since that time, new medical records regarding her condition have been added to her file. See March 2010 Private Medical Treatment Records. In view of this evidence of recent worsening of this service-connected disability, the Board finds that the current evidence of record does not adequately reveal the present state of the Veteran’s service-connected migraine headaches. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998). Therefore, a new VA exam assessing the current severity of the Veteran’s service-connected migraine headaches is warranted. Additionally, the Board finds the April 2017 VA examination inadequate to determine the severity of the Veteran’s service-connected migraine headaches because such is internally inconsistent. In this regard, the April 2017 VA examiner stated that the Veteran gets headaches once a week and that once a month, these headaches are so severe that she has difficulty to think. The examiner also noted that she reviewed the Veteran’s claims file. Nevertheless, the examiner checked the “no” box for whether the Veteran has characteristic prostrating attacks of migraine/ non-migraine headache pain. This particular point is critical in the present case, as the term “prostrating” is not defined by the applicable rating criteria (Diagnostic Code 8100). The Court has similarly noted in a non-precedential memorandum decision, in reference to DC 8100, that the term “prostration” has been defined by Dorland’s Medical Dictionary as “extreme exhaustion or powerlessness.” Felder v. McDonald, 2016 WL 1295022 (April 1, 2016). While these definitions are not binding on the Board, they offer persuasive guidance, and the Board is not aware of any alternative definition or interpretation of this term as used in DC 8100. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Further, the April 2017 VA examiner incongruently stated that the Veteran has migraines and/or headaches once a week, including a headache once a month so severe that she us unable to think, and that she does not experience characteristic prostrating attacks of migraine/ non-migraine headache pain. Additionally, the Veteran’s April 2009 VA examination, which was reviewed by the April 2017 VA examiner, stated that the Veteran suffered headaches at least once a week that lasted for 2-3 days, and that she is unable to concentrate at work and do things when she gets a headache, such as bend over and pick things up. The Veteran reported that she has migraines 1-2 times a month, and that she was finally prescribed medication by her primary care physician after experiencing a migraine that lasted for a week. See October 2010 VA Form 9. Indeed, a March 2010 private medical treatment record shows that the Veteran suffered a headache with some migraine component, and that she was prescribed midrin. Accordingly, a new medical exam opinion is warranted that addresses the Veteran’s migraines, how often they occur, and whether they rise to the level of “prostrating”, with a detailed explanation as to the examiner’s rationale. 2. Entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis is remanded. The Board finds that a new VA examination is warranted to determine the severity of the Veteran’s service-connected bilateral plantar fasciitis. The Veteran has been afforded two VA examinations for her foot disability, in April 2009 and April 2017. Regarding the April 2017 VA examination, despite the Veteran’s reports of experiencing “contact” foot pain, the VA examiner checked a box indicating no foot pain was reported and simply stated “no pain on exam.” The Board does not find this explanation adequate. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Similarly, the April 2017 VA examiner checked the “no” box for indication of swelling on use despite the Veteran reporting swelling and the April 2009 VA examiner also finding that the Veteran had swelling in her feet when standing or walking. Finally, the April 2017 VA examiner, despite noting that he reviewed the Veteran’s entire claims file, did not comment on the effect the Veteran’s foot condition has on her gait which was noted in detail on her April 2009 VA examination report. Indeed, the Veteran was recently granted service-connection for lumbosacral strain as secondary to her service-connected bilateral plantar fasciitis. For the above reasons, a remand for an adequate VA foot examination is necessary. 38 C.F.R. § 3.159 (c) (4); see also Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 3. Entitlement to an initial rating in excess of 10 percent for residuals of a left hip strain is remanded. The Board finds that a new VA examination is warranted to determine the severity of the Veteran’s service-connected residuals of a left hip strain. The Veteran has been afforded three VA examinations for her left hip strain, in April 2009, April 2017, and September 2020. These examinations do not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this regard, the April 2009 VA examination did not estimate the additional loss of range of motion (ROM) during a flare-up, and did not provide ROM measurements for pain on passive motion, weight-bearing, and nonweight-bearing. Similarly, the April 2017 VA examination did not provide ROM measurements for pain on passive motion, weight-bearing, and nonweight-bearing; it also did not examine the Veteran after repetitive use, and stated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The RO attempted to correct the shortcomings of the April 2017 VA examination by ordering an addendum opinion to be obtained in September 2020; however, the Veteran was not present for repetitive testing at the September 2020 VA examination and it seems the examiner, instead, estimated the loss of ROM due to repetitive testing. As the Veteran has not yet been afforded a VA examination that fully complies with the requirements of Correia and Sharp, remand is necessary to adequately address the severity of her service-connected residuals of a left hip strain for the entire period on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the level of severity of her service-connected migraine headache disability for the entire period on appeal. The relevant documents in the record should be made available to the examiner, including a copy of this remand. The examiner should indicate on the examination report that he/she has reviewed the documents. A detailed history of relevant symptoms should be obtained from the Veteran. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms and prostrating attacks. To the extent possible, the examiner should identify any symptoms, prostrating attacks, and functional impairments due to migraine headaches alone and discuss the effect of such on any occupational functioning and activities of daily living. The examiner should look to the guidance discussed in this remand as to what characteristics and symptoms rise to the level of a “prostrating attack.” 2. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to assess the nature and level of severity of her service-connected residuals of a left hip strain for the entire period on appeal. The Veteran’s claims file, including a copy of this remand, must be made available to the examiner, who must note its review. The appropriate Disability Benefits Questionnaire should be filled out. For each examination report, the examiner must include all the following: a) Active range of motion testing results; b) Passive range of motion testing results; c) Weightbearing range of motion testing results; d) Nonweightbearing range of motion testing results; and e) All above-mentioned range of motion measurements on the opposite undamaged joint. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweight bearing), must be specified. The examiner must provide numerical range of motion measurements for each of the above-mentioned tests. The examiner is asked to 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 the medical science and the known facts); 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). The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 3. Schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to assess the nature and level of severity of her service-connected bilateral plantar fasciitis for the entire period on appeal. The relevant documents in the record should be made available to the examiner, including a copy of this remand. The examiner should indicate on the examination report that he/she has reviewed the documents. A detailed history of relevant symptoms should be obtained from the Veteran. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner’s attention is specifically called to the Veteran’s statements that she experiences constant pain in her feet, that she experiences swelling, and that she believes her bilateral foot disability causes additional symptoms to include pain in her hips which cause her to stand strange. See April 2009 VA examination. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Mohammad 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.