Citation Nr: 1318343 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-24 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for an undiagnosed illness manifested by chronic fatigue. 2. Entitlement to service connection for an undiagnosed illness manifested by chronic pain. 3. Entitlement to service connection for an undiagnosed illness manifested by headaches. 4. Entitlement to an increased disability evaluation (rating) for gastroesophageal reflux disease (GERD), currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The appellant served on active duty from October 1988 to August 1995, and from August 1999 to December 2004. This matter came to the Board of Veterans' Appeals (Board) on appeal from February 2009 and June 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The appellant perfected an appeal of the RO's determination in March 2009. In the February 2009 rating decision, the RO denied a rating in excess of 10 percent for GERD and the appellant perfected an appeal of the RO's determination in June 2009. In a June 2010 rating decision, the RO, inter alia, denied service connection for fatigue, chronic pain, and headaches. The appellant perfected an appeal of the RO's determination in December 2010. In August 2011, the appellant testified at a Board hearing at the RO with respect to the issues on appeal. This case was previously before the Board in April 2012, wherein it was remanded in order for the RO to attempt to obtain additional service treatment records and to obtain additional VA examinations. The case was returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the directives of the April 2012 remand as to all of the issues, except service connection for headaches. The RO attempted to obtain the Veteran's missing service treatment records (a formal finding of unavailability was made and the Veteran was informed through his representative in July 2012) and the Veteran was afforded VA examinations in July 2012. A supplemental statement of the case was issued in November 2012. As such, an additional remand to comply with such directives is not required for the issues of entitlement to an increased disability rating for GERD, or for entitlement to service connection for undiagnosed illnesses manifested by chronic fatigue and chronic pain. Unfortunately, the Board finds that still further development is required as to the issue of entitlement to service connection for an undiagnosed illness manifested by headaches, as the RO has not fully complied with the Board's April 2012 remand directives as to this issue. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, the right to compliance with the remand orders). This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. In a January 2013 rating decision, the Veteran was granted an increased, 30 percent disability evaluation for GERD with duodenitis, effective December 3, 2008. The Veteran continued to disagree with the rating assigned; therefore, the grant of a higher initial rating is not a full grant of the benefit sought on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf conflict. 3. Throughout the rating period on appeal, the Veteran's GERD with dysphagia causes recurrent epigastric distress with pyrosis, reflux, and occasional vomiting, not confirmed by objective evaluation; there are no complaints of weight loss, anemia, hematemesis, melena, or impairment of health. 4. The Veteran did not have symptoms of chronic fatigue syndrome in service. 5. A current undiagnosed illness characterized by chronic fatigue has not been demonstrated. 6. The Veteran did not have symptoms of chronic pain syndrome in service. 7 . A current undiagnosed illness characterized by chronic pain has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for an increased rating, in excess of 30 percent for GERD with dysphagia have not been met. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7346 (2012). 2. An undiagnosed illness manifested by chronic fatigue syndrome was not incurred in or aggravated by active service, does not result from any incident therein, and may not be presumed as having been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1117, 1118, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2012). 3. An undiagnosed illness manifested by chronic pain syndrome was not incurred in or aggravated by active service, does not result from any incident therein, and may not be presumed as having been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1117, 1118, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in December 2008, June 2009, and October 2009 to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection and his claim for an increased rating, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decisions that are the basis of this appeal were decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has reported post-service treatment at the Brooke Army Medical Center. Correspondence dated in September 2011 shows that Brooke Army Medical Center indicated the records are unavailable. In July 2012 and November 2012, the Veteran was informed that these treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran did not indicate that he had any additional records to submit. Nonetheless, the claims file contains reports of private and VA post-service treatment, the Veteran's own statements in support of his claims, and the history, findings, diagnoses, and opinions from VA examinations. The Veteran was examined by VA in connection with his service-connected GERD in December 2008, September 2009, and July 2012; he was examined by VA in connection with his claims for service connection of undiagnosed illnesses manifested by chronic fatigue and chronic pain in May 2010 and July 2012. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issues on appeal. The VA examination reports contain all the findings needed to decide the claims for service connection and an increased rating, including history of injury and symptoms, clinical examination findings, and diagnoses (or finding of no current disability). With regard to the claims for service connection, there is competent medical evidence showing no current disability of undiagnosed illness, chronic fatigue syndrome, and chronic pain syndrome, so no nexus opinion is necessary. The assessment was based on a thorough review of history, current complaints, and various specific clinical findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Veteran's appeal for a higher evaluation for GERD is distinguished from the facts in Proscelle v. Derwinski, 2 Vet. App. 629, 633 (1992), where no VA examination was provided during the rating claim, and a veteran specifically stated that his disability "has increased in severity [such] that I rate a higher disability," constituting at least both some assertion by the veteran and some evidence of worsening of disability since the last VA examination. Proscelle, 2 Vet. App. at 632. In the Veteran's case currently on appeal to the Board, there is no evidence of worsening of the Veteran's disability since the 2012 VA examination, including no assertion by the Veteran of worsening since the last VA examination. The Veteran here does not assert that his disability worsened since the July 2012 VA examination; he merely asserts entitlement to a higher disability evaluation. The Veteran has not submitted evidence of worsening, and the evidence of record, including the medical evidence reflecting on the severity of the disability on appeal, does not suggest that the disability on appeal has worsened since the last VA examination and VA treatment records in 2012. As there is no evidence of worsening since the last VA examination, a remand for a new VA examination is not warranted, and is not required by the VCAA. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); VAOPGCPREC 11-95 (interpreting that a new examination is appropriate when there is an assertion of an increase in severity since the last examination). The Veteran has been afforded an adequate examination on the issue decided herein. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For these reasons, the Board finds that the VCAA duties to notify and assist have been met. In addition, the Veteran has not alleged that the examinations are inadequate to decide the current claims, so the examinations are presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Analysis of Increased Rating for GERD The Veteran's GERD with dysphagia is evaluated pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7346. See 38 C.F.R. § 4.20 (2012) (when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology, are closely analogous). Under Diagnostic Code 7346, a 30 percent disability evaluation is warranted for hiatal hernia where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, which is productive of considerable impairment of health. A 60 percent disability evaluation requires pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severely impaired health. See 38 C.F.R. § 4.114, Diagnostic Code 7346. The Veteran contends that a disability rating higher than 30 percent for GERD is warranted. In his testimony before the undersigned, the Veteran reported that he experiences heartburn daily, despite dietary changes and medication. He also reported epigastric distress, with chest and shoulder discomfort. After a review of all the evidence, lay and medical, the Board finds that for the entire rating period on appeal the Veteran's service-connected GERD with dysphagia more nearly approximate the criteria for a 30 percent disability evaluation under Diagnostic Code 7346. The Board finds that the Veteran does not have pain, material weight loss and hematemesis or melena with moderate anemia, or other symptoms productive of severe impairment of health. At the December 2008 VA examination, the Veteran complained of daily pyrosis and occasional episodes of dysphagia despite use of medication; he denied impact on his work or recreational activities. Endoscopy showed esophagitis without ring or stricture, with normal stomach and mild duodenitis. At a September 2009 VA examination, the Veteran reported experiencing daily reflux, with frequent heartburn and occasional epigastric abdominal pain, worse with eating at bedtime. The most recent, July 2012 VA examination report indicates that the Veteran reported experiencing daily pyrosis, episodic dysphagia, feeling like he has a heavy weight on his chest, and occasional vomiting. The Veteran also reported that he took medication for his GERD, but continued to experience recurrent epigastric distress, with heartburn and reflux. An endoscopy showed minimal evidence of esophagitis; his stomach and duodenum were normal. The VA examiner noted that the Veteran's GERD does not impact his ability to work. As a result, the Board finds that his current 30 percent disability rating for GERD with dysphagia adequately compensates him for the extent of his symptoms. Extraschedular Considerations The Board has considered whether referral for an extraschedular evaluation is warranted for his GERD with dysphagia. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate; therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." See 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's GERD with dysphagia are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 7346 (hiatal hernia), specifically provides for a disability rating based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's GERD with dysphagia has manifested epigastric distress, dysphagia, and pyrosis, as well as shoulder pain. These symptoms are part of the schedular rating criteria, or are otherwise "like or similar to" the rating criteria. The disability rating schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. See 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the Veteran's GERD with dysphagia, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by a veteran or on his or her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, supra, 1 Vet. App. at 57. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has not been diagnosed with a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to that claimed disability. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board notes that the Veteran is shown to have qualifying service as a Persian Gulf War Veteran. For Persian Gulf War veterans, service connection may be granted for objective indications of a disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue; muscle or joint pain; neurologic signs or symptoms; neuropsychologic signs or symptoms; signs or symptoms involving the respiratory system; or sleep disturbances. The disability must have become manifest either during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; see also Interim Final Rule, 76 Fed. Reg. 81,834 (Dec. 29, 2011). For purposes of 38 C.F.R. § 3.317, a qualifying disability means a disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal diseases); or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A. § 1117(d) warrants a presumption of service connection. 38 C.F.R. § 3.317(a)(2)(i), as amended by 76 Fed. Reg. 41,696 (July 15, 2011). [The amendment also added a note to § 3.317(a)(2)(i)(B)(3) defining functional gastrointestinal disorders, but that will not be further explained here, since it is not relevant to the service connection claims decided herein.] In addition, under 38 C.F.R. § 3.317, the term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis of Service Connection Claims The Veteran has claimed service connection for chronic fatigue syndrome and chronic pain syndrome, including as due to undiagnosed illness. In multiple statements, the Veteran contends that he had symptoms in service and was diagnosed after his service and, thus, should be service connected. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a disease or injury of chronic fatigue syndrome or chronic pain syndrome during service, and did not have symptoms of chronic fatigue syndrome or chronic pain syndrome in service. Service treatment records show that the Veteran did not report any related complaints at his 1995 separation examination or his 2004 Medical Board Evaluation; the Veteran also did not report a history of fatigue or pain syndromes at his initial November 2004 VA examination. See 38 C.F.R. § 3.303(a). The weight of the evidence demonstrates that after service the Veteran did not experience symptoms of chronic fatigue syndrome or chronic pain syndrome, which further indicates no disability during service or evidence of current disability when examined after service. The Veteran is competent to report certain symptoms related his claimed disabilities, as well as diagnoses; however, the Board finds that his assertions of current chronic fatigue syndrome or chronic pain syndrome are not credible. Although the Veteran has continued to assert that he has chronic fatigue syndrome or chronic pain syndrome, multiple evaluations and examinations since separation from service have shown that he does not currently have chronic fatigue syndrome or chronic pain syndrome. A July 2012 VA examination reports indicate that testing did not show any evidence of chronic fatigue syndrome or chronic pain syndrome. Additionally, although VA treatment records dated in September 2008 show that the Veteran was assessed with chronic pain, it appears that the diagnosis is based on the Veteran's report of symptoms. The Board is not bound to accept medical opinions that are based on a history that is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The Board further finds that the weight of the evidence demonstrates that the Veteran does not currently have chronic fatigue syndrome or chronic pain syndrome. Significantly, the Board assigns probative value to the July 2012 VA examiner's opinion that the Veteran does not have, and never had, chronic fatigue syndrome or chronic pain syndrome. According to the VA examiner, the Veteran does not have any of the symptoms of chronic fatigue syndrome or chronic pain syndrome; his ankle and foot pain are related to his service-connected residuals of a left ankle fracture and left foot tendonitis. Additionally, the Veteran's self-reported symptoms of fatigue and loss of concentration have been associated with his nonservice-connected anxiety and impulse control disorder. The VA examiner further opined that the Veteran did not have chronic fatigue syndrome or chronic pain syndrome; according to the VA examiner, the Veteran's physical examination was normal, and did not report any of the signs or symptoms of these disorders. The Board also observes that the VA examiners did not find that the Veteran's complaints were due to an undiagnosed illness. Likewise, the VA examiners opined that the Veteran's symptoms did not have a nexus to the Veteran's military service. According to the VA examiners, the Veteran's complaints were symptoms of his already service-connected residuals of a stress fracture of the left ankle and his tendonitis of the left foot, as well as due to his nonservice-connected anxiety and impulse control disorder. VA is precluded from compensating the Veteran for the very same symptoms as those that are part and parcel of an already service-connected disability. See Esteban v. Brown, 6 Vet. App. 259 (1994). Moreover, these are clinical diagnoses. Thus, these disabilities are not shown to be due to undiagnosed illness. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a). Consequently, service connection for these disorders as the result of an undiagnosed illness must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). For these reasons, the Board finds that the weight of the evidence demonstrates no current disability for which service connection may be awarded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"). For these reasons, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran has chronic fatigue syndrome or chronic pain syndrome; therefore, the claims for service connection of chronic fatigue syndrome and chronic pain syndrome must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER A disability evaluation (rating) in excess of 30 percent for GERD with dysphagia is denied. Service connection for chronic fatigue syndrome is denied. Service connection for chronic pain syndrome is denied. REMAND VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board acknowledges that the Veteran was previously afforded VA examinations in May 2010 and July 2012. However, the Court has held that the RO's compliance with the Board's remand instructions is neither optional nor discretionary. See Stegall, supra. In this regard, the July 2012 VA examination indicates that the Veteran has migraine headaches, which is a diagnosis, not an undiagnosed illness. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a). Likewise, post-service VA and private treatment records show that the Veteran has headaches, and that the Veteran reported that his headaches began in 2003, prior to his discharge from service. Nevertheless, the VA examiner did not address whether the Veteran's migraine headaches were causally or etiologically related to the Veteran's military service, as per the Board's instructions in the previous April 2012 remand. VA adjudicators may consider only independent medical evidence to support their findings; they may not rely on their own unsubstantiated medical conclusions. If the medical evidence of record is insufficient, VA is always free to supplement the record by seeking an advisory opinion, or ordering a medical examination to support its ultimate conclusions. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the Board finds that the Veteran should be afforded a VA examination. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA neurological examination in order to assist in determining the current nature and likely etiology of the Veteran's migraine headaches. Based on the examination and review of the record, the examiner is requested to provide the following opinion: Is it at least as likely as not (i.e., whether there is at least a 50 percent probability) that the Veteran's migraine headaches had their onset during any period of active duty service or within a year thereafter, or are otherwise related to active service? A rationale for all opinions expressed should be provided. The relevant documents in the claims file should be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted and the results reported in detail. 2. Readjudicate the claim of service connection for headaches. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran is advised of the consequences for failure to report for a scheduled examination. According to 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. The purpose of this remand is to provide assistance by further developing the record. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs