Citation Nr: 21066935 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 18-13 280 DATE: November 2, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral syndrome (left knee disability) is denied. Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral syndrome (right knee disability) is denied. REMANDED Entitlement to an initial disability rating in excess of 30 percent for migraine headaches is remanded. Entitlement to an initial disability rating in excess of 10 percent for spondylosis with thoracic and lumbosacral spine strain (back disability) is remanded. FINDINGS OF FACT 1. The Veteran's left knee flexion has been limited to no worse than 90 degrees, including upon clinical examination and as determined to result after repetitive motion and during flare-ups. 2. The Veteran's right knee flexion has been limited to no worse than 90 degrees, including upon clinical examination and as determined to result after repetitive motion and during flare-ups. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for left knee disability, rated as limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an initial disability rating in excess of 10 percent for right knee disability, rated as limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2013 to April 2016. This appeal arises from a January 2016 rating decision by a VA Regional Office (RO) that, in pertinent part, granted service connection for migraine headaches, left knee patellofemoral syndrome, and right knee patellofemoral syndrome, all assigned a noncompensable (zero percent) rating effective April 24, 2016. In February 2017, the Veteran submitted a notice of disagreement as to these initial ratings. In an April 2018 rating decision, the RO increased these initial zero percent ratings to 30 percent for migraine headaches and to 10 percent for each of the knee disabilities, all effective April 24, 2016. In May 2019, the Board of Veterans' Appeals (Board), inter alia, denied initial ratings in excess of 30 percent for migraine headaches and in excess of 10 percent for the left and right knee disabilities. The Veteran appealed the Board's May 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted the parties' August 2020 Joint Motion for Partial Remand (JMPR) to vacate and remand the Board's decision for further development as to the migraine and knee issues. The Court also noted that the Veteran was not challenging the Board's May 2019 decision as to the remaining issues included in that decision and, thus, dismissed the appeal as to those remaining claims. Additionally, the Court noted that, because the issue had been remanded by the Board, the Court was without jurisdiction over the claim of entitlement to an initial rating in excess of 10 percent for spondylosis with thoracic and lumbosacral spine strain (back disability), as further discussed below. The appeal returned to the Board, and in July 2021, the Board remanded the appeal for additional development. The appeal is now again before the Board. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Disability evaluations are determined by the application of the presented facts to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his or her symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), 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 (ROM) measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this case, as will be outlined below, the Veteran's bilateral knees have never been limited to a compensable degree. Rather, the RO awarded 10 percent ratings bilaterally due to painful motion under the provisions of 38 C.F.R. § 4.59 and found no basis to award a further increase finding no compensable limitation of motion, ankylosis, arthritis, or instability. See 38 C.F.R. § 4.59, 4.71a, DC 5260. The Board, similarly, finds no basis to award an increased or separate rating for either the left or right knee. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new DC applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Here, there is evidence regarding the Veteran's knees since February 7, 2021, to include an August 2021 VA examination, and thus, the Board will apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction (AOJ). In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claims. Under the pre-amended criteria, degenerative arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion is noncompensable under the appropriate DC, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Degenerative arthritis as shown by x-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion is noncompensable under the appropriate DC, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Under DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Under DC 5260, flexion of the leg limited to 60 degrees is rated as noncompensable (zero percent); flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Also relevant to any discussion of knee disabilities are the criteria under DCs 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between zero degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5261, extension of the leg limited to 5 degrees is rated as noncompensable (zero percent); extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Effective February 7, 2021, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. DC 5257 also provides for ratings based on patellar instability. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1) to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) to DC 5257 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Also effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. Normal ranges of motion of the knee are to zero degrees for extension, and to 140 degrees for flexion. 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, VA afforded the Veteran knee examinations in May 2016 and April 2018, and another one that was conducted in August 2021, in accordance with the Board's July 2021 remand instructions. At the May 2016 examination, the examiner noted that the Veteran reported the following symptoms: bilateral knee pain; climbing stairs is painful; pain is in the anterior knee around the kneecaps bilaterally; described as sharp pain rated 7-8/10 at worst; and if not doing anything, pain is 3/10 at rest. After in-person examination and review of the Veteran's claims file, the examiner reported a diagnosis of bilateral patellofemoral pain syndrome. Flare-ups were not reported. ROM testing was normal for both knees. The examiner also reported the following results: no evidence of pain with weight bearing; medial and lateral patellar facets showed evidence of localized tenderness or pain on palpation of the joint or associated soft tissue; no objective evidence of crepitus; no ankylosis; no additional functional loss or ROM after three repetitions; and unable to say without mere speculation if pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. Muscle strength testing and instability tests were all normal. There was no history of a meniscus (semilunar cartilage) condition or knee surgery. The examiner noted a positive patellar grind bilaterally. Finally, the examiner opined that the Veteran's knee disabilities impacted his ability to perform occupational tasks and gave examples of limited running and activities with deep knee bending. In the April 2018 examination report, the examiner noted the following bilateral knee diagnosis: patellofemoral syndrome. The examiner noted that the Veteran reported the following symptoms: constant achy pain rated 2/10 that increases to 4/10 during increased activity; worsening pain since 2016; bilateral knee pain and weakness for which he takes 400 mg ibuprofen as needed; and the Veteran reported flare-ups when walking for prolonged periods of time, exercise, or lifting; and he cannot stand or walk for a prolonged period of time or play sports or exercise for a long time. ROM testing bilaterally showed: flexion to 130 degrees; extension to zero degrees; and after repetitive use testing, no additional functional loss in ROM reported. The examiner noted that the Veteran reported functional loss after repeated use and flare-ups, and the loss of ROM is variable, depending on how strenuously the joint was used; at its worst, the Veteran cannot move it at all due to pain, but there are other times where the ROM loss is minimal. Muscle strength testing and instability tests were all normal. No ankylosis was noted. There was no history of a meniscus (semilunar cartilage) condition or knee surgery. Finally, the examiner opined that the Veteran's knee disabilities impacted his ability to perform occupational tasks and stated that the impact of the knee conditions is disturbance of movement and interference with walking, standing, and weight-bearing. At the August 2021 examination, the examiner noted that the Veteran reported the following symptoms: constant, daily dull achy pain 3/10; flare-up pain 8/10; soreness, tightness, tenderness, pulling, radiating to the bilateral feet causing numbness with limited ROM, causing decreased movement. After in-person examination and review of the Veteran's claims file, the examiner reported a diagnosis of bilateral patellofemoral pain syndrome. The examiner also reported the following results bilaterally: flare-up pain occurs 3x/week and last for about 5 hours; pain is 8/10 on a pain scale of 0-10; and due to 8/10 pain, there is functional impairment with limited ROM causing decreased movement and this causes fatigue, weakness, and lack of endurance to perform his daily chores and job duties. The examiner reported no history of instability or recurrent subluxation of the knee or a history of frequent effusion of the knee. ROM testing bilaterally showed: active ROM flexion to 120 degrees and extension to zero degrees with pain noted on flexion and extension; the same ROM limitation with pain was reported for passive ROM; evidence of pain with weight-bearing, nonweight bearing, active motion, and passive motion; no evidence of crepitus; objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue described as facial grimacing and Veteran stating "it hurts" while ROM was performed during the exam, causing 5/10 pain; and repetitive use testing was not performed because of the Veteran's fear of pain. However, regarding both repetitive use and flare-ups, the examiner indicated that pain, fatigability, weakness, lack of endurance, and incoordination in both knees cause functional loss that could be estimated as limiting flexion to 90 degrees with no limitation of extension. Muscle strength testing was all normal. Joint stability testing was not performed because of the Veteran's fear of pain, but the examiner noted that there was no history of knee instability. Also, there was no history of a meniscus (semilunar cartilage) condition or knee surgery or ankylosis. There was no tibial or fibular impairment reported. The examiner noted that x-rays were not clinically indicated on the day of the exam. In sum, the examiner noted: bilateral patellofemoral syndrome; flare-up pain 8/10, soreness, tightness, tenderness, pulling, radiating to bilateral feet causing numbness with limited ROM causing decreased movement; aggravated by prolonged walking, standing, sitting, running, jumping, squatting, pulling, pushing, lifting, climbing, driving, bending, twisting, and any activities that puts pressure on bilateral knees; and takes frequent breaks to alleviate his symptoms and this causes fatigue, weakness, and lack of endurance to perform his daily chores and job duties. The Board notes, at the outset, that the VA examinations taken in conjunction with medical treatment records showing consistent bilateral knee treatment, are an adequate basis upon which to determine the extent and severity of the Veteran's knee disabilities. Although whether there was pain with passive movement and nonweight-bearing was not elicited at the earlier examinations, the Veteran reported increased severity of pain and flare-ups, suggesting increased pain with active and weight-bearing activities. Furthermore, ROM testing was normal in May 2016. As such, active and weight-bearing motion as captured by the most recent examination is more likely to represent the most severe limitation of motion caused by the disabilities. When the Veteran reported flare-ups, the August 2021 examiner determined the additional loss of function in terms of ROM. Given the totality of the information, including the Veteran's own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. at 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. 1. Entitlement to an initial disability rating in excess of 10 percent for left knee patellofemoral syndrome (left knee disability) is denied. 2. Entitlement to an initial disability rating in excess of 10 percent for right knee patellofemoral syndrome (right knee disability) is denied. The evidence pertaining to the left and right knee disabilities is identical, and thus, the Board will analyze the disabilities together here. As outlined above, the Veteran's bilateral knees have been manifested by patellofemoral pain syndrome with limited flexion no worse than 90 degrees, even taking into account the Veteran's description of pain, flare-ups, functional impairments, and increased pain with everyday repetitive use. See 38 C.F.R. § 4.59; Mitchell v. Shinseki, 25 Vet. App. at 32. In contrast, under DC 5260, a rating greater than 10 percent would require flexion limited to 30 degrees. See 37 C.F.R. § 4.71a, DC 5260. Indeed, in light of the Veteran's normal 0 degrees extension and flexion no worse than 90 degrees, his bilateral limited motion would not warrant a compensable rating under either DC 5260 or DC 5261. Rather, his 10 percent rating for each knee was assigned by the RO under the provisions of 38 C.F.R. § 4.59 in light of the painful joint of each knee and the Board finds such rating continues to be appropriate here, but no higher. As an aside, the Board notes that, while the record includes relevant evidence received after February 7, 2021, the new knee rating criteria was considered, but found not more favorable here. In particular, the range of motion diagnostic codes, DC 5260 and DC 5261, were not affected by the amendments. Alternative and/or separate ratings were also considered, but none were found applicable here. Rating the disability under DC 5256 is not indicated here as there is no evidence of ankylosis or the functional equivalent resulting in complete limitation of motion. See Chavis v. McDonough, 34 Vet. App. 1 (2021). During the August 2021 VA examination, instability testing could not be completed because of fear of pain. However, as the examiner noted, there had been no history of instability or complaints of instability or subluxation. Prior examinations dated in May 2016 and April 2018 had completed stability testing, which were normal. The Board has taken due consideration of the Veteran's description of functional impairments stemming from his knees, but none have pertained to feelings of instability or recurrent subluxation. Indeed, he has no history of ligament abnormalities or tears. For these reasons, the Board finds DC 5257 is not for application. Similarly, the evidence does not indicate any history of or complaints related to meniscal conditions. Thus diagnostic codes DC 5258 and DC 5259 are not for application. See also Lyles v. Shulkin, 29 Vet. App. 107 (2017). There is no malunion or nonunion of the tibia and fibula and no genu recurvatum indicating that a rating under DC 5262 or DC 5263, respectively, is warranted. The Board notes that a claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Id. However, as outlined above, the evidence preponderates against the claims as the record shows that the Veteran does not have any knee disability that would warrant a rating higher than rating higher than 10 percent under DC 5260. The evidence is not in approximate balance, and thus, the benefit-of-the-doubt doctrine is not applicable. The evidentiary record does not reasonably raise the prospect that the Veteran's knee disabilities are not and cannot be adequately rated under the Rating Schedule. Accordingly, higher ratings for the service-connected bilateral knee disabilities, rated as limitation of flexion, are not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 30 percent for migraine headaches is remanded. In statements received in September 2021, the Veteran and his representative made arguments regarding why a higher rating is warranted for migraine headaches. They also submitted evidence pertaining to migraine headaches, which they contend support a higher rating, to include documentation of migraine prescription medications and a collection of recent leave statements. Importantly, the Veteran's statement, addressed to the agency of original jurisdiction (AOJ), requested that the AOJ consider his statement before returning the appeal to the Board. The statements and evidence address migraines only, and not the knee disabilities, and were received after the RO issued an August 2021 supplemental statement of the case. The Board interprets the Veteran's request in the September 2021 statement as not waiving AOJ consideration of such statement and accompanying evidence. Thus, the Board finds remand is warranted for the AOJ to consider the statements and evidence received in September 2021. The Board notes that under DC 8100 for migraine, the next higher rating of 50 percent, which is the maximum rating, requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran was afforded a VA examination in July 2021. While the examiner addressed severe economic inadaptability in the absence of ameliorative effects of appropriate medication, the examiner failed opine specifically on the whether the Veteran's migraines result in very frequent completely prostrating and prolonged attacks. While on remand, the RO should obtain an addendum opinion that addresses whether the Veteran's migraines result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to an initial disability rating in excess of 10 percent for spondylosis with thoracic and lumbosacral spine strain (back disability) is remanded. By way of background, the Veteran was afforded VA examinations in May 2016 and April 2018. At the April 2018 examination, the Veteran reported flare-ups described as severe 8/10 pain that results in him not being able to go anywhere, precipitated by sitting, standing, or walking for a long time, and relieved only by lying down flat. In May 2019, the Board remanded the back issue for an examination that adequately considered the Veteran's reports of flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Since that time, the Veteran has not been afforded such an examination, and thus, he should be afforded one on remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), 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. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In May 2019, the Board also requested that the new examination comply with such requirements. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from July 2021 to the present. 2. Ask the appropriate examiner (for migraine headaches) to review the Veteran's claims file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should describe the severity of the Veteran's service-connected migraine headache disability, specifically addressing whether such disability results in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. If the Veteran's arguments are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). 3. Schedule the Veteran for a VA examination with an appropriate professional to determine the extent and severity of his service-connected back disability. (a) All indicated tests should be performed, including range of motion findings expressed in degrees and in relation to normal range of motion and also neurological tests. (b) The examination should include testing results on both active and passive motion, and in weight-bearing, and nonweight-bearing. The examiner should assess where pain begins on the Veteran's initial range of motion and upon repetitive testing. The examiner should also describe any pain, weakened movement, excess fatigability, and incoordination present. If the examiner is unable to conduct such testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why. (c) The examiner should estimate any additional functional loss in terms of additional degrees of limited motion of the thoracolumbar spine experienced during flare-ups and repetitive use over time. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to include the Veteran's descriptions as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time. (d) The examiner is asked to consider the Veteran's lay statements of record regarding the functional impact of his back disability, to include addressing whether he has ankylosis, or the functional equivalent of ankylosis. The examiner must provide a complete rationale for his or her opinions in the examination report. If any of the above requested opinions cannot be made without resorting to speculation, the examiner must state that conclusion and explain why, e.g., whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge, and whether there is additional evidence, which if obtained, would permit the opinion to be provided. 4. After the above development and any other development deemed necessary is completed, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Santiago, 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.