Citation Nr: 21071888 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-44 276 DATE: December 1, 2021 ORDER Entitlement an increased initial rating greater than 20 percent for a lumbosacral strain disability is denied. REMANDED Entitlement to service connection for right hip disability is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for left hip disability is remanded. FINDING OF FACT The Veteran was not shown to have unfavorable ankylosis of the entire spine, unfavorable ankylosis of the entire thoracolumbar spine, favorable ankylosis of the entire thoracolumbar spine, or limitation of forward flexion of his thoracolumbar spine to be 30 degrees or less. The evidence also did not show that he had any incapacitating periods of acute signs and symptoms due to intervertebral disc syndrome (IVDS) which required bed rest prescribed by a physician and treatment by a physician. CONCLUSION OF LAW The criteria for entitlement an increased initial rating greater than 20 percent for a lumbosacral strain disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.46, 4.71a, Diagnostic Codes (DC) 5237, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2006 to July 2009 and from March 2010 to April 2011. This matter returns to the Board of Veterans' Appeals (Board) from our prior remand decision of March 2021 (Board Remand) which returned the matter to the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ) for additional development. As described in the Board Remand, the March 2015 rating decision is the rating decision on appeal for the issues currently on appeal. After the Board Remand, the Veteran was granted entitlement to service connection for both his right and left knees. See, Rating Decision, July 2021. This constitutes a full grant of these issues on appeal and, therefore, these issues are no longer before the Board. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); 38 U.S.C. § 7104, 38 C.F.R. § 20.104. In the Board Remand, we requested the AOJ to provide the Veteran a VA examination to determine the current nature and severity of his service-connected thoracolumbar spine disability. The requested examination was conducted, and the Board finds that there has been substantial compliance with this part of the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (only "substantial" rather than strict compliance with the Board's remand directives is required under Stegall). In the Board Remand, we also requested the AOJ to obtain any outstanding VA treatment records, including records from the VA medical centers (VAMCs) in Los Angeles, California, and Aurora, Colorado. Here, as described below, the Board finds that substantial compliance was not accomplished, and the issues of entitlement to service connection for the Veteran's bilateral hip disabilities and migraine headaches must be remanded. Stegall, 11 Vet. App. 268. 1. Entitlement an increased initial rating greater than 20 percent for a lumbosacral strain disability. The Veteran claims that the symptoms and impact of his service-connected thoracic spondylosis and lumbar strain (hereinafter back condition or lumbosacral strain) are more severe than what is compensated for in his initial 20 percent disability rating and have worsened since his May 2017 VA examination. As such, the Board directed that he be provided a new VA examination, which was provided in June 2021. See 38 U.S.C. § 5103A; 38C.F.R. §3.159; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination). The Veteran is currently service connected for his lumbosacral strain at a 20 percent disabling level of severity. This rating was assigned based on forward flexion limited to 60 degrees. Rating decisions of October 2013 and March 2015 both denied the claim for an increased rating but continued the currently assigned 20 percent rating. Increased Rating As an initial matter, there have been changes to the musculoskeletal regulations effective February 7, 2021. The Board may continue the old rating criteria to rating periods prior to February 7, 2021 but may apply whichever set of criteria is more favorable to periods after February 7, 2021 if the claim was pending prior to that date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran's lumbosacral strain disability is rated under VA diagnostic code (DC) 5237, General Rating Formula for Diseases and Injuries of the Spine, applicable to DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The Board finds this is the appropriate DC as he was not diagnosed with other disabilities and no other conditions for which a separate DC applies, i.e., Vertebral fracture or dislocation (DC 5235); Sacroiliac injury and weakness (DC 5236); Spinal stenosis (DC 5238); Spondylolisthesis or segmental instability (DC 5239); Ankylosing spondylitis (DC 5240); 5241 Spinal fusion (DC 5241); or Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (DC 5242). DC 5243 for Intervertebral disc syndrome was considered but he did not have any incapacitating episodes requiring bed rest, and therefore, as described below, this DC is also not applicable. The Board notes that the rating criteria for DCs 5237, 5242, and 5243 did not change with the February 7, 2021 regulation changes. However, the application of DC 5243 did change with the new regulations, as described below. Rating criteria applicable to the thoracolumbar spine under DC 5237 include unfavorable ankylosis of the entire spine which warrants a 100 percent disability rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating as does forward flexion of the thoracolumbar spine to 30 degrees or less. There are no criteria for a 30 percent rating related to the thoracolumbar spine. The Veteran is already granted a 20 percent rating which is awarded with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or 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. Note (2) to the General Rating Formula for Diseases and Injuries of the Spine states that 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 with the normal combined range of motion of the thoracolumbar spine to be 240 degrees. Note (2) also states that 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. 38 C.F.R. § 4.71a. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in one 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. Id., Note (5). Under the pre-February 7, 2021 regulations, IVDS is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine, see above, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 38 C.F.R. § 4.71a, Diagnostic Code 5243, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. In the February 7, 2021 regulations, the application of this DC was changed to assign this DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other diagnoses. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Diagnostic Code 5243, warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. A 20 percent disability rating for is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. And finally, a 10 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1) provides that for the purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IDVS that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that if IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243. "Chronic orthopedic and neurological manifestations" means orthopedic and neurologic signs and symptoms resulting from IVDS that are present constantly, or nearly so. Id. The Evidence of Record Post-remand VA examination of June 2021 The Veteran was provided an in-person post remand VA back examination in June 2021 which noted diagnosed disabilities of lumbar spine strain, thoracic spondylosis, and IVDS. He reported flare-ups of the back which occur once a year, that are severe, they last 3-7 days, are precipitated by activities and unknown causes at times, and they are alleviated by rest, Toradol, and/or steroids. Functional loss reported by the Veteran was pain and symptoms occur with unknown causes at times. On physical examination abnormal range of motion (ROM) measurements were noted, which of itself did contribute to a functional loss due to pain and limited movement. Initial ROM testing showed forward flexion recorded as 0 to 70 degrees, where normal ROM is 0 to 90 degrees; extension endpoint of 20 degrees, where 30 degrees is normal; right lateral flexion endpoint of 30 degrees and left lateral flexion endpoint of 15 degrees, where 30 degrees is normal for both; and right lateral rotation endpoint of 30 degrees and left lateral rotation endpoint of 15 degrees, where 30 degrees is also normal for both. See 38 C.F.R. § 4.71, Plate V. There was evidence of pain in all active ROM aspects except right lateral flexion and rotation, at the respective degree endpoints. Passive ROM testing was performed with ROM limitations the same as on active motion, noted above, and pain on the same ROM aspects at the respective degree endpoints. Evidence of pain was noted on weight-bearing, nonweight-bearing, active motion, and passive motion which caused functional loss due to pain and decreased ROM. There was no evidence of crepitus. He was tender to palpitation both sides of his lower back of moderate severity which was related to his lumbar strain. He was able to perform repetitive use testing with at least three repetitions with additional loss of function or range of motion due to pain resulting in ROM limitations in forward flexion to 60 degrees, extension endpoint to 10 degrees, right lateral flexion endpoint at 30 degrees, left lateral flexion endpoint at 10 degrees, right lateral rotation endpoint at 30 degrees, and left lateral rotation endpoint at 10 degrees. He was not examined immediately after repeated use over time, with pain noted to significantly limit functional ability with repeated use over time. The estimated ROM in degrees for his lumbosacral spine immediately after repeated use over time based on information procured from relevant sources was recorded as: forward flexion to 60 degrees, extension endpoint to 15 degrees, right lateral flexion endpoint at 30 degrees, left lateral flexion endpoint at 10 degrees, right lateral rotation endpoint at 30 degrees, and left lateral rotation endpoint at 10 degrees. The Veteran reported flare-ups but was not examined during one. Pain was the only factor noted to significantly limit functional ability with flare-ups. The estimated ROM in degrees for his lumbosacral spine during flare-ups, based on information procured from relevant sources was recorded as: forward flexion to 60 degrees, extension endpoint to 10 degrees, right lateral flexion endpoint at 30 degrees, left lateral flexion endpoint at 10 degrees, right lateral rotation endpoint at 30 degrees, and left lateral rotation endpoint at 10 degrees. He was noted to have localized tenderness on both sides of the lumbar spine which did not result in abnormal gait or abnormal spinal contour. No muscle spasm or guarding was recorded. No additional factors contributing to the disability were noted. No muscle strength deficits or atrophies were shown. All deep tendon reflex (DTRs) and sensory tests were normal. Straight leg raising tests were all positive. No radicular pain or any other signs or symptoms due to radiculopathy, ankylosis, or other neurological abnormalities were identified. He denied the use of assistive devices. Intervertebral disc syndrome (IVDS) was noted, however, there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. No imaging studies were performed in conjunction with this examination. Prior diagnostic testing cited included a September 2019 MRI of the lumbar spine which revealed L2-S1 disc protrusion, annular fissure, lateral recess narrowing, and mass effect on traverse R S1 nerve; a 2017 x-ray of the lumbar spine which was unremarkable; and an April 2017 x-ray of the thoracic spine which showed mild anterior osteophyte formation at a mild thoracic disc base. These abnormal findings relate to the decreased ROM and pain on this examination. Functional impact was described that when flare-up and pain occur, the pain interferes with his work as an MRI Technician. The VA examiner confirmed the use of a goniometer for all joint range of motion measurements. She also stated that for the VA established diagnosis of lumbar strain the diagnosis is changed, and it is a progression of the previous diagnosis; his IVDS is a progression of the established diagnosis; and that for the VA established diagnosis of thoracic spondylosis there is no change in the diagnosis. The diagnoses have been confirmed on this examination. VA back examination May 2017 The Veteran was provided an in-person VA back examination in May 2017 which noted diagnosed disabilities of lumbar spine strain, thoracic spondylosis, and IVDS. The Veteran described his relevant history as developing lower back pain secondary to overuse during military service which has worsened over time with current treatment as use of a lumbar brace. He experiences radiation of symptoms, including numbness, tingling, pain into his bilateral lower extremities. Functional loss from his back disability as difficulty with prolonged ambulation, sitting, standing, and heavy lifting. He denied flare-ups. On physical examination, abnormal ROM measurements were noted, which of itself did not contribute to a functional loss. Initial ROM testing showed forward flexion recorded as 0 to 60 degrees; extension endpoint of 20 degrees; both right and left lateral flexion endpoint of 25 degrees; and both right and left lateral rotation endpoint of 25 degrees. There was evidence of pain which causes functional loss in all ROM aspects, including evidence of pain with weight bearing. He was tender to palpitation at the paraspinals of mild severity which was directly related to his lumbar strain. Correia considerations included that pain on passive range of motion testing was not conducted as it was noted to be unable to tests or not medically appropriate, and there no evidence of pain in non-weight bearing use. He was able to perform repetitive use testing with at least three repetitions without additional loss of function or ROM. ROM limitations were recorded in forward flexion to 60 degrees, extension endpoint to 20 degrees, both right and left lateral flexion endpoint at 25 degrees, and both right and left lateral rotation endpoint at 25 degrees. These results were the same as the previous test. He was not examined immediately after repeated use over time, with the examination stated to be neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Only pain was noted to significantly limit functional ability with repeated use over time. The estimated ROM was: in forward flexion to 60 degrees, extension endpoint to 20 degrees, both right and left lateral flexion endpoint at 25 degrees, and both right and left lateral rotation endpoint at 25 degrees. These results were the same as the previous tests. The Veteran was not examined during a flare-up with the examination stated to be neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. Pain was the only factor noted to significantly limit functional ability with flare-ups. The estimated ROM limitations in degrees was recorded as: forward flexion to 60 degrees, extension endpoint to 20 degrees, both right and left lateral flexion endpoint at 25 degrees, and both right and left lateral rotation endpoint at 25 degrees. This indicates no change from the previous tests. He was noted to have muscle spasm, guarding, and localized tenderness which did result in abnormal gait or abnormal spinal contour, without additional details provided. Additional factors contributing to the disability were noted as: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-ups, contracted scars, etc. but no specific condition was identified); disturbance of locomotion; interference with sitting; and interference with standing. No muscle strength deficits or atrophies were shown. No ankylosis or other neurological abnormalities were identified. Intervertebral disc syndrome (IVDS) was noted, however, there were no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Diagnostic imaging studies were performed but did not document any arthritis of the thoracolumbar spine, any thoracic vertebral fracture with loss of 50 percent or more of heigh, or other significant abnormal results other than Mild dextroscoliosis. He claimed the constant use of a brace for low back pain. Functional impact was described as difficulty with prolonged ambulation, sitting, standing, and heavy lifting, however he was considered able to perform any type of occupational task without significant restrictions. The examiner concluded that the Veteran shows objective findings consistent with a diagnosis of IVDS accompanied with radicular symptoms that, based on peer reviewed medical literature, can stem from lumbar spondylosis. VA Treatment records The Veteran's VA treatment records generally do not record the Veteran having any more serious back conditions or other diagnosed conditions that what was described in his VA examinations. They also do not reveal incidents where the Veteran was prescribed bed rest by a physician or treatment due to IVDS. A February 14, 2013 emergency room X-ray of the lumbar spine showed no spondylosis without signs of fracture or acute change in vertebral height or spacing which resulted an impression of low back pain with radiculopathy. An April 29, 2013 VA provider note recorded a musculoskeletal examination of his spine which showed mild tenderness and a full ROM with mild pain. On January 13, 2021 the Veteran sought emergency room treatment for low back pain since the day before, due to what he described as having tweaked his back as he had been weightlifting and doing Jiu Jitsu martial arts training. He was self-ambulatory on entrance to the emergency room. Physical Exam of his lumbar spine showed no deformity or signs of trauma, no tenderness on palpation of the spine, but positive for tenderness on palpation of paraspinal muscles, bilateral lower lumbar. He had full range of motion including flexion, extension, and side-to-side rotation with discomfort and the examination was limited due to pain. His gait was slow but steady. The overall assessment was low back pain. He was not prescribed bed rest or similar recovery regimen. Other evidence. The Veteran submitted a written statement dated August 2017 in which he states that in the last few years he has blown out his back by doing simple things such as tying his shoes and that he has often been if he has lost control of my bowels which he states means he is starting to become paralyzed. No further specifics regarding this were given. This is the only place in the record where the Veteran asserts these facts, and they appear to be somewhat inconsistent with symptoms described to his medical providers and examiners. Analysis The Board has reviewed the competent evidence of record and finds no support for an assignment of the next higher evaluation of 40 percent disabling for the Veteran's service-connected lumbar spine disability, and that the level of severity of this disability most closely relates to the currently assigned 20 percent rating. The Veteran was not shown to have unfavorable ankylosis of the entire spine, unfavorable ankylosis of the entire thoracolumbar spine, or favorable ankylosis of the entire thoracolumbar spine. Further, none of the evidence of record reveals limitation of forward flexion of his thoracolumbar spine to be 30 degrees or less. This is true even when considering any additional limitation of motion that is present during flare-ups or after repetitive use, with or without weight bearing. The examinations detailed above, when taken together, satisfy the requirements for providing information regarding flare-ups, pain on weightbearing, and any additional limitation following repetition or pain on use. DeLuca v. Brown, 8 Vet. App. 202 (1995); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the results of these VA examinations do not serve as a basis to award 40 percent disability rating or higher. The Board finds the post-remand VA examination of June 2021 to be competent and credible and assigns to it significant probative weight. The Veteran was diagnosed with IVDS, and the Board has also considered whether he should be assigned a higher rating based on incapacitating episodes pursuant to the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes that may apply to claims involving an IVDS diagnosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In order to receive a higher rating of 40 percent based on incapacitating episodes, such episodes would have to have had a total duration of at least four weeks but less than six weeks during a 12-month period. The Board notes that the definition of the term "incapacitating episodes" which appears in the regulation requires that the bed rest be prescribed by a physician. The record does not reflect that the Veteran has been prescribed bed rest by a physician at any time during the appeal period, and therefore, a higher rating is not warranted. The Board has also considered the Veteran's lay statements. Generally, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, without specialized medical training a lay witness is not competent to either diagnose or make a nexus opinion concerning most medical conditions. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here the Board finds the Veteran to be competent to describe the symptoms, impact thereof, and history related to his lumbar strain. However, there do appear to be some inconsistencies in his statements, and the Board finds his statements given to his medical providers and examiners to be the most probative. They also are more consistent with each other and the rest of the evidence as a whole. The Board also finds the Veteran's statements to the emergency room medical providers in January 2021 that he "tweaked" his back due to weightlifting and Jiu Jitsu martial arts training to be significant as to the limitations experienced from this back condition. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The claim for entitlement to an increased rating greater than 20 percent for a lumbosacral strain disability at any time during the appeal period is denied. REASONS FOR REMAND 1. Entitlement to service connection for right hip disability is remanded. 2. Entitlement to service connection for migraine headaches is remanded. 3. Entitlement to service connection for left hip disability is remanded. In the Board Remand the AOJ was directed to obtain any outstanding VA treatment records, including records from the VA medical centers (VAMCs) in Los Angeles, California, and Aurora, Colorado. This request was related to the Veteran's claims of entitlement to service connection for his bilateral hip disabilities and migraine headaches. The evidence of record does include the Veteran's Aurora, Colorado VA treatment records, stated to be the Rocky Mountain Region VAMC, from January 13, 2021 to March 26, 2021. However, the post remand record does not include any VA treatment records from the Los Angeles, California VAMC dated after the records generated July 13, 2017. The record also does not contain any documents which record the AOJ's post remand efforts to obtain these records. As such, the Board finds that substantial compliance was not accomplished and the issues of entitlement to service connection for the Veteran's bilateral hip disabilities and migraine headaches must be remanded. Stegall, 11 Vet. App. 268. On remand the AOJ is to take reasonable efforts to obtain the requested documents and is directed to record its efforts to do so, including any and all responses and/or failures to respond received, and to attach this documentation to the Veteran's file. Concerning the Veteran's claim for entitlement to service connection for migraines, the Veteran raised during his May 2015 informal Decision Review Officer (DRO) hearing that the ringing in his ears from his tinnitus causes headaches. At that time the Veteran was not yet awarded service connection for his tinnitus, which was later granted in a July 2017 rating decision, with an effective date of October 19, 2012. The record does not show that the Veteran was provided an opinion in this regard for his migraines. Accordingly, the Board finds that on remand the Veteran is to be afforded a VA examination related to his migraines, and a medical opinion provided which addresses whether these migraines are related to his military service, including as a result of or being aggravated by his service-connected tinnitus. While additional delay is regretted, remand is required to establish compliance with the previous remand directives and to obtain further medical development on this newly relevant theory of entitlement related to his migraines. The matters are REMANDED for the following action: 1. Take reasonable efforts to obtain any additional VA treatment records for the Veteran not already part of the record, including, specifically, records from the Los Angeles VAMC after July 13, 2017. 2. Thereafter, provide the Veteran with a VA examination to determine the nature an etiology of any headache or migraine disabilities he has. The examiner should review the Veteran's file, including all new evidence received and this REMAND, in the development of any opinions or evaluations given. The examiner is requested to provide an opinion which identifies all diagnosed disabilities related to his migraine/ headache condition and whether each diagnosed disability is related to or caused by his service, including as a secondary condition caused by or aggravated by his service-connected tinnitus as alleged by the Veteran. (Continued on the next page) 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach 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.