Citation Nr: 21041983 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-13 280 DATE: July 10, 2021 REMANDED Entitlement to a rating in excess of 30 percent for migraines is remanded. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome is remanded. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 2013 to April 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). A May 2019 Board decision denied the claims for increased rating for migraines, left and right knee disabilities. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (CAVC). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) of the May 2019 decision. 1. Entitlement to a rating in excess of 30 percent for migraines. The Veteran contends that his migraine headaches warrant a rating in excess of 30 percent. May 2016 and April 2018 VA examiners documented that the Veteran uses continuous medication for his migraine headaches. The April 2018 examination showed that the Veteran used ibuprofen as needed and Fioricet daily; the May 2016 VA examination showed that the Veteran takes Amitriptyline. An April 2018 VA treatment record showed that the Veteran was started on Fiorinal in 2014 to treat his daily headaches, and after running out of the medication, he missed 3 days of work due to the symptoms. However, neither the 2016 nor 2018 VA examiners opined on the severity of the Veteran's disability absent the ameliorative effects of medication. The Board finds that a remand is necessary in this appeal to obtain a medical examination with opinion that determines the severity of the Veteran's migraine headaches absent the ameliorative effects of medication used to treat them. Specifically, the examiner should state whether the frequency and severity of the Veteran's migraines showed that the condition was at the level of "producing" or "capable of producing" severe economic inadaptability. In particular, the examiner should consider and discuss migraines symptoms shown during periods wherein the Veteran was without medication. 2. Entitlement to a rating in excess of 10 percent for left knee patellofemoral syndrome. 3. Entitlement to a rating in excess of 10 percent for right knee patellofemoral syndrome. The Veteran contends that his left and right knee disabilities warrant ratings in excess of 10 percent. During the April 2018 VA examination, the Veteran reported flare-ups of his bilateral knee conditions and explained that the conditions flared when he walked for prolonged periods of time, exercised, or lifted. Similarly, during the May 2016 examination, the Veteran reported functional loss after repeated use over time. The April 2018 examiner stated that regarding functional loss during flare-ups, "the loss of ROM [range of motion] 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 ROM loss is minimal." Regarding functional loss, the May 2016 examiner stated that he was "[u]nable to say w/o mere speculation" and that the "[o]nly way to say this is to examine after repeated use over time." The Board finds that a remand is necessary in this appeal. In rendering an opinion, the examiner did not provide the necessary opinions with supporting rationale as to whether there was additional functional loss in terms of limitation of motion during flare-ups and repeated use over time. As such, a new examination that addresses such functional loss is needed. Accordingly, the matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician to determine the current severity of his service-connected migraines. The claims file, including a copy of this remand, should be made available to the clinician, who should indicate in the report that the file was reviewed. The clinician is asked to provide the following: a) Determine the severity of the Veteran's migraine headaches absent the ameliorative effects of medication used to treat them. The clinician must state whether the frequency and severity of the Veteran's migraines showed that the condition was at the level of "producing" or "capable of producing" severe economic inadaptability. b) The clinician should, particularly, consider and discuss migraines symptoms shown during periods wherein the Veteran was without medication. 3. Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his service-connected left and right knee disabilities. The claims file, including a copy of this remand, should be made available to the examiner, who should indicate in the report that the file was reviewed. The examiner is asked to provide the following: a) Range of motion testing, in degrees, should be performed and results recorded for pain on both active and passive motion and in weight-bearing and non-weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. Any indicated diagnostic tests and studies should be accomplished, and all pertinent symptomatology and findings should be reported in detail. b) The examination should record the necessary findings to evaluate whether there is additional functional loss due to flare-ups, repeated use, weakened movement, excess fatigability, and/or incoordination. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. c) If the examiner cannot provide an opinion without resorting to mere speculation regarding an estimate of additional functional loss during flare-ups, the examiner must indicate whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A. Rocktashel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Wilson, 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.