Citation Nr: 20073370 Decision Date: 11/16/20 Archive Date: 11/16/20 DOCKET NO. 18-46 748 DATE: November 16, 2020 REMANDED Entitlement to service connection for constipation is remanded. Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from April 1982 to April 1986 and from March 1987 to October 1993, with service in Operation Desert Shield/Desert Storm. In addition, he served in the Reserve and National Guard. The matters come before the Board of Veterans’ Appeals (Board) from a December 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A February 2020 order of the United States Court of Appeals for Veterans Claims (Court) implemented a January 2020 Joint Motion for Partial Remand (JMPR), vacating and remanding, in part, the April 2019 Board decision that denied entitlement to service connection for a cervical spine disability, service connection for constipation and service connection for headaches. As such these issues are again before the Board. Previously, the claims were most recently before the Board in May 2020. The claim for service connection for a cervical spine disorder was denied, and the claims for entitlement to service connection for constipation and service connection for headaches were remanded for additional development. 1. Entitlement to service connection for constipation 2. Entitlement to service connection for headaches The Veteran contends that service connection is warranted for constipation and that service connection is warranted for headaches, which are related to service to include his service in Southwest Asia. Regrettably, another remand is warranted to comply with the prior remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted for a supplemental clarifying opinion. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for constipation because no VA examiner has fully opined as to direct service connection, to include environmental exposures while serving in Southwest Asia. The VA examiner in May 2020 noted that it is less likely than not that the Veteran’s constipation was incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that the Veteran’s previous symptoms of constipation in service in December 1991 were acute in nature and would not be related to current findings, noting in-service the Veteran was diagnosed with inflammation of the prostate and that his current chronic constipation is unrelated to military service. However, the examiner failed to provide a thorough rationale for the conclusions reached and fully address the Veteran’s lay statements that his symptoms of chronic constipation began in-service and continued since. In addition, the examiner failed to fully address whether the Veteran’s chronic constipation is directly caused by his service in Southwest Asia and exposure to environmental toxins to include whether his symptoms constitute a medically unexplained chronic multisymptom illness (MUCMI) – a diagnosed illness without conclusive pathophysiology or etiology. As such a remand is warranted for a supplemental VA opinion. Headaches The Veteran contends that service connection is warranted for headaches, to include as due to in-service events and his exposures in Southwest Asia. The Board cannot make a fully informed decision on the issue of entitlement to service connection for headaches because no VA examiner has fully opined as to direct service connection, to include environmental exposures while serving in Southwest Asia. The VA examiner in May 2020 noted that it is less likely than not that the Veteran’s headaches were incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that he Veteran’s previous in-service symptoms were related to acute illness including mild headaches and sinus headaches which resolved and that the Veteran’s current headaches are less likely than not related to his military service. However, the examiner failed to provide a reasoned rationale for the opinion and to fully address the Veteran’s contentions that his headaches are directly caused by his service in Southwest Asia to include whether his symptoms constitute a medically unexplained chronic multisymptom illness (MUCMI) – a diagnosed illness without conclusive pathophysiology or etiology. As such a remand is warranted for a supplemental VA opinion. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s constipation and headaches and whether: Constipation (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s chronic constipation was caused by an in-service injury, event or disease, to include service and environmental exposures in Southwest Asia? Headaches (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s headaches were caused by an in-service injury, event or disease, to include service and environmental exposures in Southwest Asia? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The Veteran served in Southwest Asia during the applicable presumptive period. The evaluation must consider whether either or both combined represent a medically unexplained chronic multisymptom illness (MUCMI) – a diagnosed illness without conclusive pathophysiology or etiology. Therefore, the pathophysiology and etiology must be explained even if partially understood. As to constipation, the VA examiner in May 2020 noted that it is less likely than not that the Veteran’s constipation was incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that the Veteran’s previous symptoms of constipation in service in December 1991 were acute in nature and would not be related to current findings. The VA examiner should fully address the Veteran’s in-service treatment and if his current constipation is caused by such or any other in-service events, including service in Southwest Asia. Also, attention is invited to the May 2018 VA examination noting that the Veteran’s constipation was less likely than not incurred in or caused by in-service injury, event or illness. The examination noted a review of the medical literature suggesting chronic constipation has many possible causes including blockages in the colon or rectum, muscle difficulties, hormone conditions, age, gender, diet and hydration and activity levels. Attention is also invited to the May 2020 VA examination noting that it is less likely than not that the Veteran’s headaches were incurred in or caused by the claimed in-service injury, event or illness. The VA examiner noted that the Veteran’s previous in-service symptoms were related to acute illness including mild headaches and sinus headaches which resolved and finding that the Veteran’s current headaches are less likely than not related to his military service. Further, attention is invited to treatment records noting the Veteran was involved in an in-service car accident in September 1990. In addition, attention is invited to the Veteran’s lay statements noting that he reports his symptoms of chronic constipation began in-service and continued since, and that his current symptoms are related to in-service reports of rectal pain. Also, the Veteran reports that his headaches began since returning from Desert Shield/Storm. (continued next page) Also, the Veteran has submitted medical literature suggesting symptoms of headaches may be present more frequently in Gulf War Veterans and in the presentation of Gulf War illness. See Migraine in Gulf War Illness and Chronic Fatigue Syndrome: Prevalence, Potential Mechanism, and Evaluation, Frontiers in Physiology July 2012, Vol 4 Article 181. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kardian, 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.