Citation Nr: 21011524 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 08-33 824 DATE: March 2, 2021 ORDER Entitlement to service connection for a bilateral foot disability is denied. Entitlement to service connection for chest pain to included coronary artery disease (CAD) is denied. Entitlement to an increased rating in excess of 20 percent disabling for service-connected degenerative joint disease of the lumbar spine (also known as low back disability) is denied. REMANDED Entitlement to service connection for migraine headaches secondary to low back, cervical spine, and bilateral shoulder disabilities is remanded. Entitlement to TDIU is remanded. FINDINGS OF FACT 1. The Veteran’s bilateral foot disability was noted on entry into service and was not aggravated during service. 2. The Veteran’s CAD did not have its onset in service, or manifest to a compensable degree within one year of service discharge and is not etiologically related to service in any other way. 3. During the period on appeal, objective range of motion testing showed the Veteran’s service-connected lumbar spine disability was manifested by thoracolumbar forward flexion functionally greater than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot disability have not been met. 38 U.S.C. §§ 1111, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.306. 2. The criteria for service connection for CAD are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to a rating in excess of 20 percent for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to May 1978 and from October 1979 to October 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from May 2008, July 2010, August 2010, and May 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified at a hearing before the undersigned. The transcript has been associated to the file. In a June 2017 decision, the Board, in part, denied an increased disability rating in excess of 20 percent for a low back disability. The Veteran appealed the Board’s decision with respect to the increased rating to the United States Court of Appeals for Veterans Claims (Court). Counsel for the Veteran and the Secretary of VA (the Parties) filed a Joint Motion for Partial Remand (JMPR), leaving undisturbed the claims that had been remanded in the June 2017 Board decision. In a June 2018 Order, the Court granted the motion and remanded the increased rating claim to the Board. In the October 2018 decision, the Board remanded the issue of an increased rating in excess of 20 percent disabling for a low back disability to obtain private treatment records and for a new VA examination that complied with the Correia requirements. The Board finds that VA properly requested information for the private treatment records, but the Veteran did not respond to the request by VA. Moreover, the Veteran was afforded a VA examination that complied with the Correia requirements. Additionally, the Board remanded the issues for a bilateral foot disability and chest pain due to obtain outstanding Social Security Administration (SSA) records. Additionally, the issue for migraine headaches was remanded as well due to the new theories of entitlement made by the Veteran. While the SSA records were obtained, they did not provide evidence to further substantiate the bilateral foot disability and chest pain issues. Moreover, there has been no development regarding the Veteran’s migraine headaches issue as the contentions of secondary service due to the cervical spine and bilateral shoulder disabilities have not been properly addressed by an addendum opinion. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 446 (1995) (en banc). In order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). Veterans are presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that the injury or disease in question existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. Only such conditions as are recorded in entrance examination reports are to be considered as “noted.” 38 C.F.R. § 3.304 (b). If a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Under 38 U.S.C. § 1153, the burden falls on the veteran to establish aggravation of the preexisting disorder. Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 1. Entitlement to service connection for a bilateral foot disability The Veteran alleges that his bilateral pes planus was aggravated during service. He reported that he experienced foot pain since basic training and was told that he had fallen arches and that the only thing they could do to fix it is to rebreak his feet and set them. The Veteran chose not to proceed with this solution. He reported that he hurt his feet in airborne school where his foot turned, and he did not know if he tore it or just injured his right achilles tendon. Based upon a careful review of the evidence, the Board finds that service connection for a bilateral foot disability is not warranted based on a finding that it pre-existed service and was not aggravated by service. As to pre-existence of the disability, STRs document that upon enlistment examination in June 1975, the examining physician documented that the Veteran had bilateral pes planus. The Veteran denied a history of foot trouble at that time. Given a finding of pes planus on enlistment, the presumption of soundness does not attach with respect to the Veteran’s claimed disability, and the only benefit that can be awarded for his bilateral foot disability is service connection on the basis of aggravation of the pre-existing bilateral foot disability. The Board finds that the preponderance of the evidence is against a finding that the bilateral foot disability was aggravated during service. While there is evidence that the Veteran sought treatment for his bilateral foot disability in service, there is no indication that it was aggravated beyond its natural progression. For example, in July 1975, the Veteran reported that his feet swelled up almost daily and a few days later complained of bilateral ankle pain. In 1994, pes planus was listed under the temporary minor problems. In March 1994, the Veteran complained of soreness in the balls of his feet for the past four months. In the August 1996 separation examination, the examiner did not note that the Veteran had a bilateral foot disability. The Veteran did report foot trouble in his Report of Medical History. Post-service treatment records report a bilateral foot disability. In November 2006, a private physician submitted a medical opinion reporting that the Veteran’s plantar fasciitis is a degenerative process and is not expected to be relative to his military service. In July 2006, the Veteran saw a private physician where he reported that he feels as if his arches have collapsed somewhat. Upon examination, the examiner reported that the Veteran had bilateral plantar fasciitis after seeing that the Veteran had tenderness at the insertion of the plantar fascia with mild to moderate pes planus bilaterally. In the January 2017 Board hearing, the Veteran testified that his problems with his feet began in basic training. He reported that he was told that he had fallen arches and that the only thing they could do was to rebreak his feet and set them. After basic training while he was in airborne school, he hurt his feet. He reported that before the injury he had problems with his feet but did not go to sick call. But then he turned his foot and he did not know if he tore it or just injured his right achilles tendon. He further reported that he had not and still is not seeing anyone for his feet and that he just uses arch supports. He reported that he currently feels numbness in his feet and feels like he is walking on his bones. The February 2018 VA examination diagnosed the Veteran with bilateral pes planus. The examiner noted that a diagnosis of pes planus was noted on the June 1975 entrance examination and that the Veteran had in-service complaints of foot pain. The Veteran reported that he was also told during basic training that he had flat feet when he complained of some foot pain. He was told at that time that his arches had fallen. The examiner explained that the 1975 and 1978 physical examination showed no pedal deficiencies. The examiner also noted that the Veteran was diagnosed with mild to moderate pes planus in 2002 and 2006 after being out of the service since 1996. The examiner also noted that the Veteran was diagnosed as not having pes planus in 2002. The Veteran reported that he continues to wear inserts in both shoes to keep his feet from hurting and claims that he walks better with them in place. He reported that he has not had any fractures or other damage to his feet bug complains that the ruck marches were painful to his feet in service. The Veteran reported that currently after 15 minutes of standing or walking his feet ache. He furthered that he has never seen a podiatrist. The examiner opined that it is clear and unmistakable that the Veteran’s pes planus existed prior to service, but that it was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the Veteran had a post-service examination four years after leaving service in 2000 and there were no complaints about foot pain or impairments. The Board finds no evidence that shows that the Veteran’s bilateral foot disability was aggravated beyond its natural progression during military service. While the Veteran reported injuring his foot during service, there is no indication of this injury. STRs only show continuous reports of foot pain, but nothing that would cause the Veteran’s foot disability to be aggravated. Moreover, the separation examination also does not indicate that the Veteran has any foot disability. The Board finds that the probative value of the medical records outweighs the Veteran’s recollections regarding his bilateral foot disability, and that his recollections lack credibility in this regard. Also, post-service treatment records show that the Veteran is diagnosed with mild to moderate pes planus, which is not a big difference from the mild pes planus the Veteran was diagnosed with at the entrance examination. Moreover, the record does not contain any medical opinion indicating that the Veteran’s bilateral foot disability was aggravated beyond its natural progression during service. In fact, there are two medical opinions claiming that the Veteran’s bilateral foot disability did not get aggravated during service. The Board notes that while the Veteran is competent to report observable symptoms, he is not shown to possess the medical training necessary to establish that his bilateral foot disability aggravated beyond its natural progression. Under the facts of this case, the Board finds that the matter of determining the etiology of the bilateral foot disability is more suitable to medical rather than lay expertise. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a bilateral foot disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to service connection for chest pain to included coronary artery disease (CAD) The Veteran alleges that the chest pains he experienced during military service were precursors to his currently diagnosed CAD. STRs are silent for a diagnosis or treatment for CAD. While there were multiple entries of chest pain, they were attributed to the Veteran’s hiatal hernia and gastroesophageal reflux disease (GERD). Moreover, while the Veteran’s EKG came out abnormal in the August 1996 separation examination, chest radiographs came out normal. There is also no objective evidence that the Veteran was diagnosed with these disabilities within one year of service discharge. The earliest evidence of pertinent symptoms, treatment, or complaints for CAD is found years after service. In September 1999, the Veteran underwent cardiac catheterization where the physicians determined that there was no significant atherosclerotic CAD. The examiner noted that because of the Veteran’s risk factors and the mild disease determined, modification of his lifestyle, especially stopping smoking would be important to slow the progression of the disease. In the September 2000 VA examination, the examiner noted that the Veteran has nonocclusive CAD where he has had an abnormal electrocardiogram, but the details are unclear. The examiner reported that the Veteran had a stress test about a year ago which was followed up with a thallium scan for an episode of chest pain that he had one year ago. That scan was suggestive of CAD and the Veteran then underwent a left heart catheterization in 1999. The Veteran reported that it showed nonocclusive CAD and no interventions were taken. He furthered that he did not have any chest pain during the VA examination and has not had any history of chest pains since the episode a year ago. The Veteran reported smoking cigars about three to four times a day. Upon examination, the examiner noted that the Veteran had normal heart activity. In August 2000 the Veteran was seen by a cardiologist again where it was reported that he was in no acute distress and that he doubts the chest pain is CAD. In July 2007, the Veteran was submitted to the hospital due to feeling weak, dizzy, and having chest discomfort. The examiner reported that about a month ago, in June 2007, the Veteran was admitted to the hospital for chest pain and was found to have CAD and had a stent put in. The examiner reported that the Veteran quit smoking about six years ago in 2001. Since then, the Veteran has continuously seen and been treated for his CAD. In the January 2017 Board hearing, the Veteran reported how during service he started losing a lot of weight and then started having bad chest pains. He explained that the doctors ran tests and could not find anything, but that he still had chest pains and felt sick. He was told that his chest pains were caused by his hiatal hernia and GERD. He reported that when he was separating, he had an abnormal EKG and that a couple years after separating he had a heart attack and was diagnosed with CAD. In the February 2018 VA examination, the examiner noted that the Veteran was diagnosed with CAD in 1999. The examiner reported that the Veteran explained that he had a stress test in 1998 which was followed up with a thallium scan for an episode of chest pain he had one year ago. The scan was suggestive of CAD and he then underwent a left heart catheterization in 1999. He reported that the Veteran had nonocclusive CAD and no interventions were taken. The examiner furthered that service medical records for the period 1980 to 1996 are negative for treatment for a chronic disability manifesting in chest pains. He additionally reported that outpatient treatment reports from August 1999 to September 1999 revealed normal cardiovascular examination and that the Veteran had a coronary artery stent placed in 2007. The examiner opined that the Veteran’s CAD was less likely as not incurred in or caused by military service since the development of a cardiac condition did not develop until several years after service. The examiner reported that the in-service chest pains are not an indication of later disease. Since he had negative tests for cardiac disease just after leaving the service including a negative stress test. The Veteran had positive stress tests in 1999 and 2000 and underwent a cardiac cath which showed non obstructive disease. Additionally, the Veteran had another stress test for chest pain in 2004 that was negative. The Board finds that there is no evidence that shows that the Veteran’s in-service chest pains were indicators of the CAD that the Veteran developed years after separating. The examiners at that time attributed them to other causes like GERD and hiatal hernia. Additionally, while the Veteran’s EKG came out abnormal during the separation examination, when further tests were conducted, it showed that the Veteran’s hear was normal. Additionally, there is no evidence attributing the Veteran’s in-service chest pains to the CAD that he developed years later. The Board notes that while the Veteran is competent to report observable symptoms, he is not shown to possess the medical training necessary to establish that his CAD originated in service. Under the facts of this case, the Board finds that the matter of determining the etiology of the CAD is more suitable to medical rather than lay expertise. Thus, more probative weight is provided to the medical professionals and their opinions. Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for CAD. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Rating 3. Entitlement to an increased rating in excess of 20 percent disabling for service-connected degenerative joint disease of the lumbar spine (also known as low back disability) The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks in the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks in the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks in the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5); see also Lewis v. Derwinski, 3 Vet. App. 259 (1992) (defining ankylosis as fixation of a joint in a particular position); Nix v. Brown, 4 Vet. App. 462, 465 (1993); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Any associated neurological abnormalities (e.g., bowel or bladder impairment) are evaluated separately under the appropriate diagnostic code. See Note 1, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a. The Veteran’s lumbar spine disability is currently rated as 20 percent disabling under DC 5242 for 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 is 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. A 40 percent evaluation for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71. Normal forward flexion of the thoracolumbar segment of the 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 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V. There is a large amount of evidence in this case, consisting of both lay and medical evidence. The Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity. See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence). The Veteran asserts entitlement to a rating in excess of 20 percent for the low back disability from August 2010. As mentioned, the Veteran and his spouse testified at a travel board hearing in January 2017. At that time, the Veteran reported, in pertinent part, difficulty sitting, standing, or walking for prolonged time without severe pain. The Veteran further reported difficulty stretching overhead and bending down. He reported taking Percocet and muscle relaxers three times a day to help alleviate the pain. The Veteran indicated that his lifestyle has changed “drastically” due to his back. Additionally, the Veteran’s spouse indicated that the Veteran suffers from depression as a result of his back because “he can’t do anything and he feels [incomplete.]” The Veteran reported that he is currently taking Paxil (an antidepressant). The relevant medical evidence of record consists of VA and private treatment records, as well as reports of VA examinations conducted in June 2010, December 2013, April 2017, and September 2020. Report of the June 2010 VA examination documents the Veteran’s reports of spasmodic and aching pain in his lower back with radiation of pain and numbness in the right leg. The Veteran further reported flare-ups occurring approximately every week. The Veteran also reported difficulty climbing stairs, bending over, lifting more than 30 pounds, and walking long distances. Physical examination revealed erectile dysfunction, numbness, and paresthesias (tingling), with an etiology related to the claimed condition. Muscle spasms, guarding, and pain with motion were noted; however, was not noted as resulting in an abnormal gait or spinal contour. No lumbar kyphosis, lordosis, scoliosis, atrophy, or ankylosis was noted. Range of motion IROM) testing measured forward flexion to 50 degrees; extension to 10 degrees; and lateral flexion and rotation to 20 degrees, bilaterally. Objective evidence of pain was noted. Similar findings were noted after repetitive-use testing. No additional functional loss was noted. Straight leg raising test was noted as positive, bilaterally. The Veteran was diagnosed with mild degenerative arthritis of the lumbar spine. The examiner noted that the Veteran has a disc dehydration of L5-S with a slight central disc bulge at L4-5. Report of the December 2013 VA examination documents the Veteran’s reports of more severe and continuous low back pain and spasms. The Veteran further reported that he developed “sciatica” of the right leg, which he described as going down the right leg to the knee and occasionally the calf. Veteran also described intermittent bilateral foot numbness. Physical examination revealed tenderness and pain on palpation of the thoracic and lumbar paraspinals. Muscle spasms and guarding not resulting in abnormal gait or spinal contour was noted. ROM testing measured forward flexion to 60 degrees; extension to 15 degrees, with painful noted at 10 degrees; lateral flexion to 20 degrees, bilaterally; and lateral rotation to 25 degrees with pain noted at 20 degrees, bilaterally. Objective evidence of pain was noted. Similar findings were noted after repetitive-use testing. Straight leg raising test was noted as negative, bilaterally. Intermittent radicular pain to the right lower extremity was noted; left side was noted as not affected. No ankylosis or IVDS was noted. X-rays imaging was performed and documented arthritis. The Veteran was diagnosed with DJD of the lumbar and thoracic spine, respectively. The examiner opined that although the Veteran needs the ability to get up intermittently from a seated position throughout the day, the Veteran’s back disability should not preclude light duty or sedentary employment. Additionally, the examiner opined that the Veteran’s claimed bilateral leg pain and foot numbness is less likely than not caused by or a result of the Veteran’s service-connected low back disability. In rendering this opinion, the examiner reasoned that the “Veteran’s [bilateral] leg pain does not correlate with radicular disease since the distribution is not consistent with radiculopathy” and was not helped by epidurals. Furthermore, the examiner reasoned that there is no objective evidence of nerve root compression/radiculopathy. With regard to the bilateral foot numbness, the examiner reasoned that the foot numbness is not a symptom attributable to thoracolumbar spine disability since the legs are not involved in the numbness. Report of the December 2013 VA reproductive system examination reflects that the Veteran was found to have low testosterone in 2010 and placed on testosterone injections. The Veteran continued the hormonal replacement treatment for one year, after which they were stopped. The Veteran has difficulty becoming erect and cannot take medication due to his non-service-connected heart condition. The Veteran also experiences bladder leakage. The examiner opined that the Veteran’s erectile dysfunction (ED) and bladder leakage is less likely than not attributable to his service-connected back disability, to include residuals of treatment, i.e., medications, for that disability. In rendering this opinion, the examiner reasoned that the Veteran is diagnosed with hypogonadism and is presently not receiving testosterone replacement, which is the “most likely cause.” However, the examiner also noted that the Veteran’s hypertensive vascular disease may also be a contributing factor. With regard to bladder leakage, the examiner noted that etiology cannot be determined; however, there is no evidence to suggest that the Veteran’s service-connected back disability has any relationship to his bladder leakage. Report of the April 2017 VA examination documents the Veteran’s reports of difficulty with rising transfers and walking, lifting, and carrying. The Veteran reported that a combination of all three areas, i.e., back, knee, and hip, can keep him in bed “2 or 3 days each month,” and increase his reliance on pain medication. The examiner noted additional traumas, i.e., falling from truck and motor vehicle accidents in 2009 and 2010, which aggravated the Veteran’s back disability. Physical examination revealed local tenderness and spasms in the lumbar paraspinal muscle. Guarding and muscle spasms were noted. Antalgic gait due to back, knee, and hip pain, collectively, was noted. The examiner noted that the back disability contributed most to difficulties with transfers, with aggravation by prolonged sitting, standing, ambulating, or lifting. Spinal contour was also noted as abnormal due to muscle spasms with decreased lumbar lordosis and increased thoracic kyphosis. No muscle atrophy or ankylosis was noted. ROM testing measured forward flexion to 45 degrees; extension to 8 degrees; right lateral flexion to 25 degrees; left lateral flexion to 15 degrees; right lateral rotation to 17 degrees, and left lateral rotation to 22 degrees. ROM after repetitive-use testing measured forward flexion to 42 degrees; extension to 5 degrees; right lateral flexion to 20 degrees; left lateral flexion to 10 degrees; right lateral rotation to 18 degrees, and left lateral rotation to 15 degrees. Objective evidence of pain was noted. Specifically, the examiner noted splinting respiratory patterns, grunting, and grimacing with ROM testing. The examiner noted that trying to estimate additional loss of ROM with a flareup would be pure speculation, and explained that it is predictable only that all flares would be unique depending on triggering factors and other circumstances involved. Straight leg raising test was noted as negative, bilaterally. The examiner noted that the radicular-type symptoms reported by the Veteran are not due to radiculopathy. The absence of paresthesias and numbness was noted. No other neurological abnormalities associated with the Veteran’s back disability were noted. No ankylosis or IVDS was noted. X-rays imaging was performed and documented arthritis. Excess fatigability, pain on movement, less movement, disturbance in locomotion, and interference with sitting and standing were also noted. The Veteran’s previous diagnoses of DJD and DDD of the lumbar spine were confirmed, and the Veteran was also diagnosed with lumbosacral sprain, thoracolumbar muscle spasm, and spondylosis. No further opinion or rationale was provided. Report of the September 2020 examination documents a diagnosis of degenerative joint disease of the lumbar spine that has progressed and worsened since it began. The Veteran reported that his current symptoms include chronic aching, sometimes dull or crampy low back pain with the interval development of radiating pain and numbness affecting both legs. The Veteran reported experiencing flare-ups of occasional episodes of more intense pain and stiffness lasting for two to three days. He further reported functional impairment since he has difficulty with yardwork, lifting, and stair climbing. Initial ROM measurements include: forward flexion is limited to 65 degrees, extension and bilateral lateral flexion is limited to 20 degrees, and bilateral lateral rotation is limited to 15 degrees. The examiner reported that ROM itself contributes to a functional loss since it inhibits bending, twisting, and lifting ability. Pain was noted on the examination and caused functional loss for forward flexion, extension, and bilateral lateral rotation. There was no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. There also was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing and there was no additional loss of function or ROM after three repetitions. The Veteran was not examined immediately after repetitive use over time, but the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain significantly limits the functional ability with repeated use over a period of time, but the functional loss cannot be described in ROM. The examiner reported that there was no additional ROM loss, but heavy and repeated activity worsened the pain which inhibited the ability to continue. The pain was moderate. The examination was also not conducted during a flare up but it was medically consistent with the Veteran’s statements describing functional loss during flare up. The examiner reported that pain significantly limited the Veteran’s functional ability with flare ups. The examiner reported ROM during flare ups: forward flexion limited to 45 degrees, extension and bilateral lateral flexion limited to 15 degrees, and bilateral lateral rotation limited to 10 degrees. The Veteran did not have guarding or muscle spasms of the thoracolumbar spine. The Veteran had normal muscle strength and no muscle atrophy. There is no ankylosis of the spine nor does the Veteran have any other neurologic abnormalities related to the lumbar spine. The Veteran did not have Intervertebral disc syndrome (IVDS) and did not use any assistive devices to assist with locomotion. The examiner reported that the Veteran’s low back disability impacts his ability to work since he has difficulty with yardwork, lifting, and climbing stairs. There was no objective evidence of pain on non-weight bearing and passive ROM could not be performed or was not medically appropriate. The Board initially notes that separate ratings are already in effect for bilateral lower extremity nerve impairment associated with the thoracolumbar spine disorder. Those ratings are not before the Board at this time. Nor does the Veteran or the evidence suggest additional neurologic conditions associated with the thoracolumbar spine disorder that have not already been separately rated. After careful review of the evidence, the Board finds that, a rating in excess of 20 percent for lumbar spine disability is not warranted. There is no evidence of forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. At the most, the Veteran’s forward flexion was limited to 42 degrees, even with repetitive use testing. The Board finds, with consideration of the functional limitations due to pain, to include limitations due to flare-ups, the Veteran’s lumbar spine disability most closely approximates a 20 percent disability rating. The Board acknowledges reports from SSA records and VA records that described how the Veteran’s back pain worsened and made it difficult for him to lift things and climb stairs. However, these specific treatment records did not include actual ROM measurements which would allow the Board to assess the Veteran’s flexion during those timeframes. The Board also acknowledges that although the Veteran’s disability makes it difficult for him to work, he can still indeed work and is compensated for the functional impairments caused by his disability to the extent that is legally permissible. Overall, the evidence, to include the Veteran’s range of motion testing and other physical findings, is consistent with a 20 percent disability rating during this period. With respect to functional impairment, repetitive motion testing showed that even with consideration of functional impairment, his range of thoracolumbar motion does not approximate the criteria for more than a 20 percent rating. The Board has considered his account of flare ups but finds that they do not describe an increased functional impairment that would approximate the criteria for a higher rating. The records do not establish or indicate physician-prescribed bed rest for any incapacitating episodes. Accordingly, a higher rating under that alternative set of criteria is not warranted. Thus, the Board finds that the weight of the evidence is against a rating in excess of 20 percent for the lumbar spine disability. The preponderance of the evidence is against this issue, and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for migraine headaches secondary to low back, cervical spine, and bilateral shoulder disabilities is remanded. The October 2018 Board decision remanded the issue of service connection for migraine headaches to include the new theories of entitlement. The new theories of entitlement included service connection for migraine headaches on a secondary basis due to the Veteran’s low back, cervical spine, and bilateral shoulder disabilities. There was no additional development to determine whether the Veteran’s migraine headaches are related to either of these service-connected disabilities. As such, the matter must be remanded for addendum opinions. 2. Entitlement to TDIU is remanded. As the issue of entitlement to TDIU can be impacted by resolution of the Veteran’s migraine headaches claim being remanded, the Board finds that the issue of entitlement to TDIU must be deferred, as it is inextricably intertwined with the issue being remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s migraine headaches are at least as likely as not (50 percent or greater) proximately due to the Veteran’s service-connected low back disability. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s migraine headaches are at least as likely as not (50 percent or greater) proximately due to the Veteran’s cervical spine disability. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s migraine headaches are at least as likely as not (50 percent or greater) proximately due to the Veteran’s cervical spine disability. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.