Citation Nr: 21062453 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 12-12 611 DATE: October 7, 2021 REMANDED Entitlement to a rating in excess of 10 percent for migraine headaches for the period prior to April 24, 2019, and in excess of 30 percent thereafter is remanded. Entitlement to an initial rating in excess of 10 percent for left hip limitation of extension is remanded. Entitlement to rating in excess of 10 percent for limitation of abduction, left hip during the period prior to November 3, 2015, and in excess of 20 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for right knee sprain is remanded. Entitlement to a rating for left knee strain in excess of 10 percent for the period prior to November 3, 2015 and in excess of 20 percent thereafter is remanded. Entitlement to a rating for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS), in excess of 10 percent during the period prior to November 3, 2015, in excess of 20 percent during the period from November 3, 2015 to April 9, 2019, and in excess of 40 percent thereafter is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1984 to September 2004. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). May 2016 and January 2019 Board decisions remanded the issues on appeal for further development. A July 2020 rating decision increased the rating for migraine headaches from 10 to 30 percent and granted a noncompensable rating for left hip limitation of abduction, both effective on April 9, 2019. A November 2020 rating decision then granted a 10 percent rating for left lower extremity radiculopathy, effective March 5, 2010, and a 10 percent rating for left hip limitation of extension, effective April 6, 2010. Because higher ratings for these disabilities are assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). An October 2020 rating decision granted extraschedular TDIU, effective September 8, 2013, the day after the Veteran's last day of employment. As this was a complete grant of the benefit sought on appeal, the issue is not before the Board. 1. Entitlement to a rating in excess of 10 percent for migraine headaches for the period prior to April 24, 2019, and in excess of 30 percent thereafter The January 2019 Board decision requested a new VA examination regarding the severity of the Veteran's migraine headache disability. A VA examination was then provided in April 2019. The examiner found migraine headaches with characteristic prostrating attacks and noted the Veteran's reports of headaches 6-7 times per month, each lasting more than 2-3 days and requiring him to lay in bed in a dark and quiet room. However, the examiner then found that the prostrating attacks occurred on average once every 2 months and that the Veteran did not have very prostrating and prolonged attacks productive of severe economic inadaptability. The examiner did not provide any basis for finding prostrating attacks only once in 2 months or otherwise reconcile the finding regarding frequency with the lay evidence of migraines 6-7 times per month, which are lay-observable symptoms that the Veteran is competent to report. Given the significant discrepancy between the frequency reported by the Veteran and the examiner's findings and the lack any explanation for disregarding the competent lay evidence of record, remand is required to clarify the frequency of prostrating attacks. 2. Entitlement to an initial rating in excess of 10 percent for left hip limitation of extension 3. Entitlement to rating in excess of 10 percent for limitation of abduction, left hip during the period prior to November 3, 2015, and in excess of 20 percent thereafter 4. Entitlement to a rating in excess of 10 percent for right knee sprain 5. Entitlement to a rating for left knee strain in excess of 10 percent for the period prior to November 3, 2015 and in excess of 20 percent thereafter 6. Entitlement to a rating for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS), in excess of 10 percent during the period prior to November 3, 2015, in excess of 20 percent during the period from November 3, 2015 to April 9, 2019, and in excess of 40 percent thereafter The January 2019 Board decision requested new VA examinations for the left hip, bilateral knees, and lumbar spine. VA hip, knee and spine examinations were then provided in April 2019 and an additional spine examination was performed in October 2020, however while the examiners noted pain on range of motion testing on the hip, knee and spine examination, in each case they did not indicate the point in the range of motion that pain began. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. As the April 2019 and October 2020 examiners did not provide the required information regarding pain, remand is required to obtain an accurate picture of the Veteran's level of functional impairment. Effective February 7, 2021, the Diagnostic Codes (DC) applicable to knee disabilities have changed. As pertinent to this issue, DC 5257 now requires additional evidence, such as type and treatment, to rate knee instability if such is present. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 20202) (to be codified at 4.71a, DC 5257). The VA knee examination should be conducted in such a way that it includes findings consistent with the new requirements of DC 5257. 7. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy The Board notes that a VA spine examination has been ordered above as part of the required development for the issue of an increased rating for the lumbar spine. As that examination is likely to produce information relevant to the issue of an increased rating for the left lower extremity radiculopathy, this issue must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his migraine headache disability. The examiner should review the file and provide a complete rationale for all opinions expressed. Regarding the frequency of any prostrating attacks, the examiner should specifically discuss the competent lay evidence of record, to include reports of migraines requiring laying down in a dark room and reconcile that evidence with any findings. Any discrepancies between the reported frequency and the examiner's findings should be clearly explained. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left hip, bilateral knee, and lumbar spine disabilities. 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 left hip, bilateral knee, and 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. The knee joints should also be tested for instability and any instability found should be noted, to include the type of instability and treatment received for the same, if any. Findings pertaining to knee instability should comply with the newly enacted Diagnostic Criteria 5257 effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 4.71a, Diagnostic Code 5257). 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). 3. 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 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.