Citation Nr: 20022453 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 15-18 783A DATE: March 31, 2020 REMANDED Entitlement to service connection for a bilateral foot disability, to include pes planus. Entitlement to service connection for a gastrointestinal disability. Entitlement to service connection for migraine headaches. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder. INTRODUCTION The Veteran served on active duty from August 1994 to September 1995. This appeal is before the Board of Veterans’ Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. At the outset, the Board’s September 2018 decision denied an appeal for service connection for a dental disability, to include root canal with a partial crown. The September 2019 joint motion for partial remand (JMPR) instructed that this denial should be vacated only to the extent that it failed to refer a claim of service connection for a dental disability for treatment purposes for appropriate action. As such, the issue of entitlement to service connection for a dental disability for treatment purposes only has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 20.904(b) (2019). REASONS FOR REMAND In October 2016, the Veteran testified during a Board hearing in Washington, DC, before the undersigned Veterans Law Judge. A transcript is included in the claims file. In September 2018, the Board remanded the Veteran’s claim of service connection for an acquired psychiatric disability with instruction to obtain relevant treatment records and an opinion from a VA examiner. The relevant records were obtained as were opinions from a VA examiner. The issue is therefore again before the Board. In the same September 2018 decision, the Board denied the Veteran’s appeals for service connection for a bilateral foot disability, a gastrointestinal disability, and migraine headaches. She appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the denials in a September 2019 order granting a joint motion for partial remand (JMPR). These issues are likewise again before the Board. 1. Entitlement to service connection for a bilateral foot disability, to include pes planus 2. Entitlement to service connection for a gastrointestinal disability 3. Entitlement to service connection for migraine headaches The Veteran claims service connection for pes planus, a gastrointestinal disability, and migraine headaches. She has not received a VA examination for any of these disabilities. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As noted by the JMPR, service treatment records reflect in-service reports of foot pain in October 1994 and November 1994, as well as headaches in the report of medical history accompanying her August 1995 separation examination. At her October 2016 hearing she reported continuous symptoms of gastrointestinal problems, foot pain, and headaches since separation from service. The September 2018 decision denied service connection for these disabilities in part because the Veteran did not identify any current treatment records indicating a relationship between the disabilities and service. Since that decision, however, over a thousand pages of VA treatment records have been associated with her claims file. In light of the new evidence and affording the Veteran benefit of the doubt in light of the issues addressed in the JMPR, the Board finds that remand for examinations is warranted for these disabilities. 4. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder The Veteran claims service connection for major depressive disorder. In its September 2018 remand, the Board instructed in part that an opinion should be obtained as to secondary service connection. Specifically, the Veteran claimed that her depression was caused by her hysterectomy, which was treatment for her service-connected uterine fibroids. The Veteran underwent another VA examination in July 2019. While the examiner gave opinions with adequate rationales explaining why a current acquired psychiatric disability was unrelated to service and had not been aggravated above the baseline, the rationale supporting the opinion as to secondary service connection made no mention of her service-connected uterine fibroids or associated hysterectomy beyond a conclusory statement that “there is no diagnosis associated with uterine fibroids or hysterectomy.” Viewing the rationale generously, it is possible that the examiner intended it to be obvious that her diagnosis of borderline personality disorder could not be caused or aggravated by uterine fibroids or a hysterectomy. Unfortunately, the rationale is not so clear that the Board may make that inference. The Veteran is entitled to substantial compliance with remand instructions issued by the Board. See Stegall v. West, 11 Vet. App. 268 (1998). As such, remand for a clarifying opinion is therefore required. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination for her claimed pes planus. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should diagnose any foot disabilities suffered by the Veteran. For each disability diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that such disability is related to service. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Schedule the Veteran for a VA examination for her claimed gastrointestinal disability. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should diagnose any gastrointestinal disabilities suffered by the Veteran. For each disability diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that such disability is related to service. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 4. Schedule the Veteran for a VA examination for her claimed migraine headaches. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should diagnose any headache disabilities suffered by the Veteran. For each disability diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that such disability is related to service. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 5. Obtain a clarification opinion from the VA examiner who examined the Veteran’s mental health in July 2019, or if unavailable, from another qualified examiner. The claims file must be reviewed by the examiner. A new examination may be ordered if the examiner deems it necessary. Following a review of the claims file and any clinical examination results, the examiner must offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that her mental health disability is caused (proximately due to or the result of) or aggravated by her service-connected uterine fibroids and associated hysterectomy. In so doing, the examiner must explain specifically why such a relationship exists or does not exist. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 6. After completing the above, and any other development deemed necessary, readjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.