Citation Nr: 21063282 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 11-03 728 DATE: October 13, 2021 REMANDED Entitlement to service connection for a bilateral foot disability, including plantar fasciitis, is remanded. Entitlement to service connection for a menstruation disability, including amenorrhea, is remanded. Entitlement to service connection for a headache disability, including tension headaches, is remanded. Entitlement to service connection for obesity is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1981 to August 2005, including service in the Southwest Asia theater of military operations from October 17, 1990 to April 20, 1991. This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case has a lengthy procedural history, to include an appeal to the United States Court of Appeals for Veterans Claims ("the Court"). January 2016 and May 2018 Board decisions remanded the issues on appeal for further development. A November 2020 Board decision denied entitlement to service connection for obesity, a bilateral foot disability, a headache disability, and a menstruation disability. In May 2021, the Court granted a Joint Motion for Remand (JMR), vacating the November 2020 Board decision and remanding the issues on appeal for readjudication in accordance with the JMR. 1. Entitlement to service connection for a bilateral foot disability 2. Entitlement to service connection for a menstruation disability 3. Entitlement to service connection for a headache disability 4. Entitlement to service connection for obesity The Court has held that a remand by the Board imposes a duty on the Secretary of Veterans Affairs to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). It further instructed that where the remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Id. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. For the reasons that follow, the Board finds that remand is required to ensure compliance with the Board's prior remands. The May 2018 Board remand requested new VA examinations and included instructions that direct, secondary, and aggravation opinions be provided as to each of the Veteran's service-connected disabilities. The Veteran underwent new VA examinations in October 2019. However, as noted in the parties' May 2021 JMR, the October 2019 VA examiner did not address whether the Veteran's service-connected bilateral knee disability contributed to her obesity or to her bilateral foot disability. Upon remand, the examiner must address this issue. Moreover, the May 2018 Board remand requested an opinion as to whether the Veteran's symptoms qualify as a chronic disability under the Persian Gulf War provisions of 38 C.F.R. § 3.317(a). The October 2019 VA examiner concluded that the Veteran's disabilities are less likely than not a Gulf War illness because the conditions have a clear diagnosis and etiology, without further analysis of whether they fall within the purview of 38 C.F.R. § 3.317(a). Upon remand, the examiner must address whether the Veteran's symptoms qualify as a chronic disability under 38 C.F.R. § 3.317(a). The Board acknowledges that service connection may not be granted for obesity, although it may act as an intermediate step to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. See VAOPGCPREC 1-2017. In this case, however, as the above opinions regarding obesity have been requested by prior Board remands, the Board has a duty to ensure compliance and is therefore remanding the issue of service connection for obesity to obtain the requested opinions. Stegall, 11 Vet. App. 268. Finally, the May 2018 Board remand requested that VA treatment records be associated with the file, including the report pertaining to the Veteran's September 2015 Gulf War examination. As noted in the May 2021 JMR, additional VA treatment records have been associated with the record, but none pertain to a Gulf War examination. Remand is required to obtain this record. The matters are REMANDED for the following action: 1. Obtain complete VA treatment records from the last date available in the electronic record to the present, to include the September 2015 Gulf War examination report. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for appropriate VA examinations, to determine the etiology of any current headache, menstruation, obesity and bilateral foot disabilities. The examiner should review the file and must address the following: (a) Whether the Veteran has been diagnosed with a headache, menstruation, obesity, or bilateral foot disability; the examiner must state whether the Veteran's symptoms are attributable to a known clinical diagnosis or an undiagnosed illness. (b) For each such diagnosed condition, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the claimed condition had onset in service or within one year of separation; or is directly linked to the Veteran's time on active duty. (c) The examiner is asked to specifically address whether the Veteran's diagnosed disabilities are at least as likely as not (a 50 percent or greater probability) proximately due to or the result of the Veteran's service-connected disabilities, to include a bilateral knee disability. (d) The examiner is also asked to specifically address whether the Veteran's diagnosed disabilities are at least as likely as not (a 50 percent or greater probability) aggravated, beyond the natural progress of the disease, by the Veteran's service-connected disabilities, to include a bilateral knee disability. (e) The examiner is also asked to specifically address whether the Veteran's symptoms qualify as a chronic disability under the Persian Gulf War provisions of 38 C.F.R. § 3.317(a). In providing the opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of her symptoms. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. Velez Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Akkad 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.