Citation Nr: 21064284 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-01 261 DATE: October 19, 2021 ORDER As new and material evidence has been received, the petition to reopen a previously denied claim for service connection for left shoulder pain is granted. Entitlement to service connection for irritable bowel syndrome (IBS) is granted. Entitlement to a rating in excess of 30 percent for esophageal stricture disability is denied. REMANDED 1. Entitlement to a rating in excess of 20 percent for residuals of cervical spine, to include degenerative arthritis (cervical spine) disability is remanded. 2. Entitlement to a rating in excess of 20 percent prior to February 11, 2020, and thereafter, in excess of 40 percent for lumbar spine degenerative arthritis with degenerative disc disease and disc bulge (lumbar spine) disability is remanded. 3. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the right hip disability is remanded. 4. Entitlement to a compensable rating for right hip strain, limitation of flexion, disability is remanded. 5. Entitlement to an initial compensable rating for right hip strain, limitation of extension, disability is remanded. 6. Entitlement to a rating in excess of 30 percent for major depression with nightmares disorder (depression) disability is remanded. 7. Entitlement to a compensable rating for residuals of traumatic brain injury (TBI) disability is remanded. 8. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disorder (GERD) disability is remanded. 9. Entitlement to service connection for muscle and joint pain, to include as due to an undiagnosed illness or medically unexplained chronic multi-system illness (MUCMI), is remanded. 10. Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. 11. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected disability is remanded. 12. Entitlement to service connection for a left shoulder disability is remanded. 13. Entitlement to service connection for foot disability, to include pes planus, to include as secondary to service-connected disability is remanded. 14. Entitlement to service connection for hypertension, to include as secondary to service-connected disability is remanded. 15. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability is remanded. FINDINGS OF FACT 1. An unappealed January 2010 rating decision denied the claim for service connection for left shoulder pain as new and material evidence had not been received to reopen the claim; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. The Veteran served in Southwest Asia during the Persian Gulf War; and IBS became manifest to at least a degree of 10 percent prior to December 31, 2021. 3. The Veteran's esophageal stricture is manifested by no more than moderate symptoms, and the preponderance of the evidence is against finding that it is more nearly manifested by severe stricture permitting passage of liquids only. CONCLUSIONS OF LAW 1. The January 2010 rating decision denying claim for service connection for left shoulder rotator cuff injury is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. § 3.104, 3.156(a), 20.1103. 2. The criteria for entitlement to service connection for IBS have been met. 38 U.S.C. §§ 1110, 1117, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.303, 3.317. 3. The criteria for a rating in excess of 30 percent for esophageal stricture disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 7203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1990 to March 1996. In June 2019, the Board denied the Veteran's petition to reopen his claim for service connection for left shoulder rotator cuff tear (previously claimed as left shoulder pain); the claims for entitlement to service connection for OSA and CFS; and the claim for an increased rating for GERD. The Veteran appealed the denial of these claims to the United States Court of Appeals for Veterans Claims (Court). In October 2020 Memorandum Decision, the Court vacated the Board's June 2019 denials and remanded the appeal to the Board for compliance with the terms therein. Additional VA medical records have been associated with the claims folder since the claims for service connection for left shoulder pain, OSA, and CFS, and increased rating for GERD were last adjudicated in a December 2017 Statement of the Case (SOC), and no waiver of initial consideration from the Agency of Original Jurisdiction (AOJ) has been received. Given the favorable decision to grant the petition to reopen the previously denied claim, the Veteran is not prejudiced by the Board proceeding herein. Further, as the other issues are being remanded, the AOJ will have opportunity to review this evidence and issue a Supplemental Statement of the Case (SSOC) if warranted. 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for left shoulder pain. The Board concludes that the January 2010 rating decision that declined to reopen a previously denied claim for service connection for left shoulder pain is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), 20.1103. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Generally, a claim that has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran's claim for service connection was originally denied in a December 1996 unappealed rating decision on the basis that the evidence did not show a current disability that was related to service. Next, a January 2010 rating decision denied the claim as new and material evidence has not been submitted to reopen the claim. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, that decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Evidentiary submissions received since the last prior final disallowance includes new and material evidence. Specifically, an October 2014 VA examination, which included a current diagnosed left shoulder disorder, coupled with the Veteran's lay statements, constitute new and material evidence. The October 2014 VA examination documents the Veteran reported spraining his left shoulder in 1990 and he has experienced chronic, intermittent, progressively worsening mechanical left shoulder pain since that injury, which later required surgical repair, and he was assessed at the examination with left shoulder rotator cuff tear and labral tear. See VA Examination (October 2014). Since the additional evidentiary submissions demonstrates a current left shoulder disability as well as tends to suggest that the Veteran may have had continuity of left shoulder symptoms since in-service injury, and this evidence was not previously before VA adjudicators at the time of the prior final disallowance, it constitutes new and material evidence. Further, considering the "low threshold" standard for reopening endorsed by the Court in Shade, this additional evidence raises a reasonable possibility of substantiating the underlying claim. Therefore, the Board finds that new and material evidence has been received. According, the petition to reopen the claim of entitlement to service connection for left shoulder pain is granted. 2. Entitlement to service connection for irritable bowel syndrome (IBS) The Veteran contends that he is entitled to service connection for IBS, claimed as due to his Gulf War service. See NOD (April 2016). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. 38 C.F.R. § 3.317 (a)(4). The term MUCMI refers to 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. 38 C.F.R. § 3.317(a)(2)(ii). Examples of MUCMIs include chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal disabilities). 38 C.F.R. § 3.317(a)(2)(B). As a threshold issue, the Veteran's DD Form 214 reflects his receipt of a Southwest Asia service medal. A Personnel Information Exchange System (PIES) response confirms that the Veteran served in Southwest Asia during the Persian Gulf War, although the exact dates of his tour could not be determined. See Military Personnel Record (April 2014). Accordingly, he is a "Persian Gulf" veteran within the meaning of § 3.317. Furthermore, the June 2015 and February 2020 VA examination reports both reflect a diagnosis of IBS, demonstrating he has a chronic disease well beyond the six month period. See 38 C.F.R. § 3.317(a)(4). Moreover, the VA regulations pertaining to Gulf War Veterans specifically contemplates IBS as a MUCMI that is defined by a cluster of signs or symptoms. See 38 C.F.R. § 3.317(a)(2)(B). Turning to the evidence, private treatment records show complaints of lower abdominal pain as early as 2013 and complaints of loose bowel movements with abdominal discomfort starting in January 2014. He was assessed with diarrhea and advised to adhere to dietary modifications. See Medical Treatment Record - Non-Government Facility (April 2014) and (October 2014). In March 2015, the Veteran initiated his claim for service connection for a gastrointestinal condition, to include IBS, which he described as manifested by constant diarrhea. See VA 21-4138 (March 2015). His symptomatology was later diagnosed as IBS. The remaining question is whether the Veteran's IBS has manifest to compensable degree during the pendency of the appeal. Pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7319, for irritable colon syndrome, a compensable (10 percent) rating involves moderate IBS with frequent episodes of bowel disturbance with abdominal distress. The June 2015 VA examination report notes a history of diarrhea, gas, and cramping which has gotten worse even with medication. He described diarrhea occurring three to four times a day as well as abdominal distension occurring three times a week. Signs and symptoms of the disease included diarrhea, abdominal distension, nausea, and vomiting. The examiner marked that the Veteran did not have episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition. On VA examination in February 2020, the Veteran reported onset of frequent loose bowl movements following meals in 1994 or 1995, and he continues to experience similar symptoms of loose bowel movements after each meal. Although the Veteran denied any specific medication for his loose bowel movements, the VA examiner noted that the Veteran's symptomatology is related to his service-connected esophageal condition that is being treated with omeprazole/bicarbonate. Signs and symptoms of the disease included loose bowel movements after eating. The examiner noted that the Veteran did not have episodes of bowel disturbance with abdominal distress or exacerbations or attacks of the intestinal condition, weight loss, malnutrition, or other signs or symptoms attributable to IBS. In a VA Medical Opinion (VAMO) report, the VA examiner concluded that the Veteran's IBS was related to his service in Southwest Asia during the Gulf War. Here, the record reflects that the Veteran's IBS has been manifested by abdominal pain and diarrhea during the appeal period. Although both VA examiners marked that the Veteran did not have episodes of bowel disturbance with abdominal distress, he has described frequency of at least several times per week, indicative of frequency episodes of bowel disturbance with abdominal distress. The Board finds that the Veteran is competent and credible to report symptoms of a gastrointestinal disorder during the appeal period, and such reported medical history is consistent with the criteria for a compensable rating under 38 C.F.R. § 4.114, Diagnostic Code 7319. Moreover, the February 2020 VA examiner opined that the Veteran's IBS was related to his Gulf War service. While it appears that the Veteran's symptoms may have improved or are currently less severe, the medical evidence does show the Veteran's IBS manifested to compensable degree during the appeal period necessary to demonstrate current disability. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Further, the Board cannot consider the ameliorative effects of medication used to treat his symptomatology (as indicated by the February 2020 VA examination). See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) ("the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria"). After affording the Veteran the benefit of the doubt, the Board finds that his signs and symptoms of IBS has manifested to at least a compensable degree for purposes of adjudication. As there is no affirmative evidence to the contrary, see 38 C.F.R. § 3.317(a)(7)(i)-(iii), the Veteran's IBS is considered a MUCMI, and presumptive service connection is warranted. To the extent that the February 2020 VA examiner indicated that the Veteran's IBS symptomatology was associated with his service-connected GERD or esophageal disabilities, the Board notes that neither of the applicable diagnostic codes specifically considers diarrhea with abdominal distress. See 38 C.F.R. § 4.114, Diagnostic Codes 7203 (strictures of the esophagus) and 7346 (hernia hiatal, by analogy for GERD). As such, the assignment of a separate rating for the Veteran's symptomatology associated with his IBS diagnosis does not constitute impermissible pyramiding. See 38 C.F.R. § 4.14. Given the above, the Board finds the evidence support the claim. Accordingly, the claim is granted. Evaluations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 30 percent for esophageal stricture disability The Veteran seeks a higher rating for his esophageal stricture disability. His disability is currently assigned a 30 percent rating under 38 C.F.R. § 4.114, Diagnostic Code 7203 for stricture of the esophagus. Under Diagnostic Code 7203, a 30 percent rating is warranted when evidence shows esophageal stricture is moderate; a 50 percent rating is warranted when the evidence shows there is a severe stricture permitting passage of liquids only; and an 80 percent rating is warranted when the evidence shows permitting passage of liquids only, with marked impairment of general health. 38 C.F.R. § 4.114, Diagnostic Code 7203. The criteria for stricture that is severe or worse includes a description of the types of symptoms contemplated for each level of disability; the same is not true for moderate stricture. Since terms such as "mild" or "moderate" are not defined in the Rating Schedule, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Under Diagnostic Code 7203, severe stricture permits only the swallowing of liquid, so lesser degrees of stricture, such as mild or moderate, may be presumed to permit both solid and liquid. This interpretation of Diagnostic Code 7203 is supported by the Court in Roby v. Wilkie, 31 Vet. App. 91 (2019), which held that VA's interpretation of "liquids" as used in Diagnostic Code 7203 does not include foods that have a textural quality like purees, soft solids, semisolids, or chewed solids is neither plainly erroneous nor inconsistent with that diagnostic code. Id. After a review of the evidence of record, the Board finds that throughout the period on appeal, a rating in excess of 30 percent for the Veteran's esophageal stricture disability is not warranted. In this regard, throughout the period on appeal, the Veteran was not limited to swallowing liquids only. VA examination reports show that the Veteran has been assessed with no more than moderate stricture of the esophagus that was amenable to dilation and required dilatation two times a year. He takes medication to help alleviate his gastroesophageal symptomatology. Neither examiner identified that that the Veteran was limited to liquids only or liquids only with marked impairment of general health. See C&P Exam (October 2014) and (February 2020). As such, the competent evidence of record demonstrates that his esophageal stricture disability more nearly approximates moderate esophagal stricture, which is consistent with the current assigned 30 percent rating under Diagnostic Code 7203. A higher rating is not warranted. See 38 C.F.R. § 4.114. The Board acknowledges that private medical records reflect the Veteran's complaints of intermittent difficulty swallowing solid food and he has been assessed with dysphagia. See Medical Treatment Record - Non-Government Facility (February 2013). However, he has not asserted, and these treatment records do not reflect, that he is limited to liquids only. Similarly, while VA treatment records reflect that the Veteran has dietary restrictions associated with his gastroesophageal symptomatology, these records do not indicate that he is limited to liquids only. See CAPRI (November 2020). Since non-liquid food is permitted, severe stricture is not shown, and a higher 50 percent rating is not warranted at any point during the pendency of the appeal. See 38 C.F.R. § 4.114, Diagnostic Code 7203; see Roby, supra. The Board has considered other diagnostic codes; however, as strictures of the esophagus is specifically listed condition under the schedule and there is no other Diagnostic Code that may be appropriately considered in order to increase the rating. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015); see also Suttman v. Brown, 5 Vet. App. 127, 134 (1993). The Board does note that the Veteran has reported symptoms of intermediate difficulty swallowing food and has been diagnosed with dysphagia. In this regard, Diagnostic Code 7346 (hiatal hernia), which considers symptoms of dysphagia, is already contemplated by the Veteran's service-connected GERD disability (rated by analogy) and cannot be rated separately without resulting in impermissible pyramiding. 3 8 C.F.R. § 4.14. Furthermore, the Board notes that, while the Veteran has undergone dilatation and takes medication to control his esophageal symptoms, the ameliorative effect of such intervention and medication were not considered in evaluating the severity of his disability. Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). As discussed above, in order to warrant a higher evaluation, the competent evidence must demonstrate that the Veteran is at least limited to liquids only under Diagnostic Code 7203; here, there is no evidence of such dietary restriction. See Roby, supra. For the above reasons, the Board concludes that the weight of the evidence is against the finding that a rating greater than 30 percent for esophageal stricture disability is warranted during the period on appeal. The claim is denied. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Indeed, the Board expressly defers a credibility determination in this appeal until the records development has been completed to the extent feasible. 1. Entitlement to a rating in excess of 20 percent for cervical spine disability is remanded. 2. Entitlement to a rating in excess of 20 percent prior to February 11, 2020, and in excess of 40 percent therefrom for lumbar spine disability is remanded. 3. Entitlement to an initial rating in excess of 10 percent for right hip disability with degenerative arthritis is remanded. 4. Entitlement to a compensable rating for right hip disability with limitation of flexion is remanded. 5. Entitlement to an initial compensable rating for right hip disability with limitation of extension is remanded. Remanded Issues 1-5: To ensure that VA has met its duty to assist, remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran seeks higher ratings for his service-connected cervical spine, lumbar spine, and right hip disabilities. The record reflects that Veteran has reported his receipt of chiropractic care for each of these orthopedic disabilities. VA treatment records reflect that records apart of Veteran's Choice, contracted private treatment, for chiropractic care had been scanned into the VA records system (VistA-Imaging). See CAPRI (August 2019). However, copies of the scanned documents are not included with the VA treatment records. Similarly, VA has not requested copies of these records or otherwise obtained an authorization for release to VA from the Veteran. Therefore, remand is necessary to associate these records with the claims file, and to afford the Veteran an opportunity to authorize release of these and any other relevant non-VA treatment records to VA. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also, Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 6. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disorder (GERD) disability is remanded. Remanded Issue 6: As noted above, this matter was last adjudicated by the AOJ in the December 2017 statement of the case (SOC). Since that time additional relevant VA-generated evidence has been received. In a June 2021 letter, the Board sought a waiver of initial AOJ consideration of this evidence. The Veteran was notified that he had 45 days to respond to the letter, and if no response was received, the Board would assume that he did not wish to have the Board decide his appeal at this time, and the claim would be remanded for the AOJ to consider the newly received evidence in the first instance. The Veteran has not responded in the time allotted. Consequently, to ensure due process of law, the matter must be remanded for the AOJ to readjudicate the claim with consideration of all evidence received since the December 2017 SOC. See 38 C.F.R. §§ 19.31, 19.37(b), 20.1305(c). 7. Entitlement to a rating in excess of 30 percent for major depression with nightmares disorder (depression) disability is remanded. 8. Entitlement to a compensable rating for residuals of traumatic brain injury (TBI) disability is remanded. Remanded Issues 7-8: To ensure the VA's duty to assist has been met, a remand is needed to afford the Veteran with a new VA examination to evaluate the nature and severity of his service-connected depression and TBI disabilities. 38 C.F.R. § 3.159. Although the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion of an increase in severity since the last examination. 38 C.F.R. § 3.159; Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Veteran was last afforded with a VA psychiatric examination in October 2014 and lasted afforded with a VA TBI examination in May 2015. The Veteran's representative, on the Veteran's behalf, asserts that the Veteran should be afforded with new VA examinations to determine the severity of his disabilities. See Third Party Correspondence (Informal Hearing Presentation) (May 2020). In support of this contention, the Veteran's representative submitted a medical article which discussed a study that showed the progressive brain atrophy may continue to occur years after a mild TBI. See Web / HTML Documents (May 2020). Given the Veteran's disabilities were last evaluation more than six years ago coupled with the Veteran's representative's contention and medical article, the Veteran should be afforded with new VA examinations to determine the severity of his disabilities as well as differentiate the symptomatology attributable to each disability. Next, the Veteran should also be afforded with another opportunity to assist in obtaining outstanding private mental health treatment records relevant to these claims on appeal. The Board previously remanded these issues to allow the VA the opportunity to seek the Veteran's assistance in obtaining mental health treatment records from private psychologists. See BVA Decision (June 2019). The Veteran did not respond to the VA's August 2019 development letter. Since it is necessary to remand the case again for new VA examinations, the Board will give him another opportunity to assist in obtaining these records. However, the Board reminds the Veteran that "[t]he duty to assist is not always a one-way street" and if the Veteran desires help with his claims, he must cooperate with VA's efforts to assist him. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 9. Entitlement to service connection for a left shoulder disorder is remanded. Remanded Issue 9: The Veteran seeks entitlement to service connection for a left shoulder disorder. He contends that his current left shoulder disorder is a result of injury incurred during his period of service and he has experienced left shoulder problems since service. The Veteran reports that he sustained an initial left shoulder injury in 1990 as well as a left shoulder injury sustained during a motor vehicle accident (MVA) in 1995, when he was hit on the back by a car while walking along the side of a road. See VA examination (July 1996) and C&P Exam (October 2014). The Veteran's service treatment records contain an undated Occupational Health Program- History and Physical, in which the Veteran marked a positive history of shoulder problems that he described as a history of left shoulder pulled muscle while lifting weights, with persistent pain for the past 1.5 years. In addition, the STR show that in January 1995, the Veteran was hit on the back by a car while walking along the side of a road, and was treated for generalized body aches, examination of his extremities revealed no deformities or edema, and he assessed with multiple contusions and abrasions on left side. Later, he was treated with persistent low back, neck, and left knee pain. See STR Medical (April 2015). The Veteran originally filed a claim for service connection for left shoulder pain in March 1996. A July 1996 VA general medical examination report showed evidence of mild trigger point noted over trapezius neck muscles, shoulders, and upper/lower back, and he was assessed with history of traumatic injury to the shoulder. His original claim for service connection was denied due to lack of chronic left shoulder disorder. See Rating Decision (July 1996). Subsequent post-service treatment records show that the Veteran sought treatment for intermittent left shoulder problems in November 2005, which was assessed as internal derangement. See Medical Treatment Record - Non-Government Facility (February 2013). In a June 2009 private treatment record, it was noted that MRI of the left shoulder revealed supraspinatus tendon and labrum tears well as degenerative joint disease, and clinical findings were consistent with left shoulder impingement. He later underwent left shoulder surgical repair in July 2009. See Medical Treatment Record - Non-Government Facility (June 2013). VA obtained an October 2014 VA Medical Opinion (VAMO) which concluded that the Veteran's current left shoulder condition was less likely than not incurred in or caused by the clamed in-service injury event or illness, because "[r]eview of the service medical records reveals no documentation of evaluation or treatment of left shoulder injury." Unfortunately, the October 2014 VAMO is inadequate, and a remand is needed to obtain a new VAMO on this matter. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when the VA undertakes to provide a veteran with a medical examination or opinion, it must ensure that the examination or opinion is adequate.). Here, the VAMO fails to address the undated STR that refers to persistent left shoulder pain for 1.5 years as well as the orthopedic injuries sustained during the 1995 MVA incident as directed. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (an adequate medical opinion "where it is based upon consideration of the veteran's prior medical history and examination.") Next, the opinion does not reflect full consideration of the Veteran's reports of left shoulder symptoms since service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate."). Generally, a claimant is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. Here, the VAMO does not address the Veteran's reports of ongoing problems since service without any explanation for doing so. Further, the VAMO relies upon medical literature that discusses the nature of labral tears without any specific application or discussion of that citation. See McCray v. Wilkie, 31 Vet. App. 243 (2019); see also, Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). Lastly, the October 2014 VAMO concluded that the Veteran's left shoulder disorder was not proximately caused or aggravated by a service-connected disability without providing rationale on such conclusion. When a medical examination or opinion is provided, the clinician must support the conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Stefl, 21 Vet. App. at 123. Given the absence of rationale that explains the basis for the conclusion reached, the Board finds that the VAMO is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, a remand is necessary to obtain an adequate medical opinion. A remand will also afford the Veteran initial consideration of the additional VA medical records that have been associated with the claims folder since this matter was last adjudicated in the December 2017 SOC. 10. Entitlement to service connection for muscle and joint pain, to include as a qualifying chronic disability in a Persian Gulf Veteran, and as due to exposure to environmental hazards during Persian Gulf War service, is remanded. Remanded Issue 10: The Veteran seeks entitlement to service connection for muscle and joint pain as result an undiagnosed illness or MUCMI associated with his Gulf War service. He also reports that he has experienced pain in multiple joints and muscles since the January 1995 MVA incident. The Board finds that a remand is again necessary as the February 2020 VA examination report and VAMO are inadequate with regard to claim for muscle and joint pain in the ankles, hands, and wrists, and fail to comply with the previous remand instructions. See 38 C.F.R. § 3.159 (c); Stegall v. West, 11 Vet. App. 268 (1998). The Board previously remanded this matter in June 2019 to afford the Veteran with another VA examination and obtain a VAMO that considered whether the Veteran's signs and symptoms were attributable to known diagnosed disorders related to his Gulf War service and/or MVA injuries, or if not, whether such signs and symptoms were attributable to chronic disability results from fibromyalgia, undiagnosed illness, or a MUCMI related to his Gulf War service. See BVA Decision (June 2019). In the February 2020 VA examination report, the examiner determined that a review of the Veteran's medical records and findings from clinical evaluation did not support the criteria for a diagnosis of fibromyalgia. Instead, the VA examiner concluded that the Veteran has specific diagnoses for muscle and joint pain in the neck, back, and knees which are already service-connected, and he has specific diagnoses for muscle and joint pain in the shoulders, hips, and feet. However, examiner did not specify whether the Veteran's muscle and joint pain in the ankles, hands, and wrists were attributable to a known diagnosis but only concluded they were chronic disability resulting from fibromyalgia, an undiagnosed illness, or MUCMI related to Veteran's Southwest Asia service. The pathophysiology and etiology of the Veteran's claimed muscle and joint pain in his ankles, hands, and wrists is unclear. Accordingly, on remand, another medical opinion must be obtained to discuss these matters. Moreover, the February 2020 VAMO is inadequate because it provides no clear conclusion and no adequate application of the medical knowledge to the Veteran's particular circumstances. See Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). In support of the conclusion that the Veteran's muscle and joint pain were less likely than caused by or result of or related to specific exposure experienced during Southwest service, the VA examiner merely referenced the absence of medical literature in support of a nexus without discussing the specific facts of the case. See Bailey, supra. Given that the February 2020 VA examination and VAMO provided inadequate answers to the questions posed by the Board, a remand is necessary. See Stegall, supra; Stefl, supra. 11. Entitlement to service connection for CFS, to include as a qualifying chronic disability in a Persian Gulf Veteran, is remanded. Remand Issue 11: In the October 2020 CAVC Decision, the Court noted that the Veteran asserted his chronic fatigue was part of his Persian Gulf MUCMI claim and determined that matter should have been remanded as part of his MUCMI claim based upon his service in Southwest Asia. See CAVC Decision (October 2020). Unless either the pathophysiology or etiology of the disorder is conclusively explained, the disability may qualify for the presumption of service connection set forth in 38 C.F.R.§ 3.117. See Stewart v. Wilkie, 30 Vet. App. 383, 398 (2018). In accordance with the Court's instructions, the claim for CFS is remanded for a new VA examination to determine whether the Veteran's complaints are manifestations of a qualifying chronic disability due to an undiagnosed illness or MUCMI with an unknown or partial etiology based on service in Southwest Asia. A remand will also afford the Veteran initial consideration of the additional VA medical records that have been associated with the claims folder since this matter was last adjudicated in the December 2017 SOC. 12. Entitlement to service connection for OSA, to include as secondary to service-connected disability, is remanded. 13. Entitlement to service connection for hypertension, to include as secondary to service-connected disability, is remanded. 14. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected disability, is remanded. Remanded Issues 12-15: The Veteran contends that his OSA, hypertension, and erectile dysfunction are secondary to his service-connected disabilities. In support thereof, the Veteran has referenced a number of medical articles and treatises associating OSA, hypertension, and erectile dysfunction with psychiatric disability. See Correspondence (April 2021) and Third Party Correspondence (May 2020). It is further argued that the Veteran's service-connected disabilities, to include medication taken to treat his psychiatric disorder, lead to his obesity and caused his development of OSA, hypertension, and erectile dysfunction. See Appellate Brief (April 2021), and Third Party Correspondence (Appellate Brief) (December 2020). In support of this, the Veteran has referenced medical articles and treatises on obesity as secondary to depression. See Correspondence (April 2021) and Third Party Correspondence (Appellate Brief) (May 2020). Further, the Court noted that the medical evidence indicates the Veteran's weight gain as an intermediate step between his OSA and service-connected disability. See CAVC Decision (October 2020). In a November 2017 VAMO, the examiner attributed the Veteran's OSA in part to his post-service weight gain and the record also included a September 2011 VA neuropsychiatry consult report in which the Veteran reported unintentional weight gain associated with his depression symptoms. See Medical Opinion (November 2017), and CAPRI (May 2018). To ensure that VA has met its duty to assist, remand is required for an addendum medical opinion to supplement the record. The Board is prohibited from substituting its own medical opinion to support or deny a claim. See Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals). The Board finds that remand is necessary as the record does not include any medical opinion that considers obesity as an intermediate step between service-connected disability and the Veteran's development of OSA, HTN, and ED. The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See Walsh v. Wilkie, 32 Vet. App. 300 (2020); VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused the Veteran to become obese, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. As such, a remand is thus necessary, because no examiner has the Veteran's service-connected disabilities caused him to become obese and, if so, whether his obesity in particular is a substantial factor in causing his OSA, HTN, and/or ED. A remand will also afford the Veteran initial consideration of the additional VA medical records that have been associated with the claims folder since the claim for service connection for OSA was last adjudicated in the December 2017 SOC. 15. Entitlement to service connection for pes planus, to include as secondary to service-connected disability, is remanded. Remanded Issue 15: The Veteran contends that his pes planus was aggravated by wear and tear caused by marching and carrying equipment during service as well as musculoskeletal injury sustained during January 1995 MVA incident. Alternatively, it is argued that his service-connected disabilities have led to his obesity and aggravated his pes planus. See Third Party Correspondence (May 2020). The Veteran has reported the onset of bilateral foot pain during service, when he first became aware that he had flat feet. STR reflect finding of mild pes planus, asymptomatic, on the Veteran's March 1990 enlistment examination report. A subsequent April 1991 periodic examination report showed the Veteran's feet were evaluated as normal. STRs also reflect complaints of right foot pain and swelling in March 1992 and left foot pain with running and wearing new shoes in October 1995. See STR-Medical (April 2015). The record does not reflect that Veteran was not afforded with an examination prior to his separation from service, however, a post-service July 1996 VA general medical examination shows his feet were evaluated as normal. Post-service medical records starting in 2003 show the Veteran presented with complaints of foot pain, he was advised that he had flat feet (pes planus) and treated with injections. See Medical Treatment Record - Non-Government Facility (June 2009). Since then, he has also been assessed with plantar fasciitis, hammertoes, hallux valgus. See C&P Exam (October 2014) and (February 2020). The Board finds that a remand is again necessary as a February 2020 VAMO is inadequate and fails to comply with the previous remand instructions. 38 C.F.R. § 3.159 (c); Stegall, 11 Vet. App. at 268. The Board previously determined that a November 2017 VAMO was inadequate. See BVA Decision (June 2019). In April 2021, the Board remanded the claim for new VA examination and medical opinion, to include consideration of whether the Veteran's pre-existing pes planus was clearly and unmistakably not aggravated beyond the natural disorder by service. The February 2020 VA examiner concluded that the weight of the current available evidence does not show that the Veteran had a pre-existing foot condition prior to military service without any further discussion. There is no indicate that the examiner reviewed and considered the findings on the Veteran's March 1990 enlistment examination report. This medical opinion is based on an inaccurate medical history and is inadequate. See Reonal, supra. A remand is needed to obtain an addendum VAMO that adequately addresses whether the Veteran's pes planus was aggravated by his service. An addendum medical opinion is also needed to address whether the Veteran's service-connected disabilities caused him to become obese and, if so, whether his obesity in particular is a substantial factor in causing his pes planus. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2020 to the present. 2. Associate copies of all non-VA medical treatment records scanned into the VA medical records system (VistA Imaging) dated from July 2011 to the present with the Veteran's claims folder. 3. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms or treatment of the cervical spine, lumbar spine, right hip, TBI, and depression disabilities, including chiropractic care and mental health treatment. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected mental disorder (major depression). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected depression disability alone. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI disability. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 6. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's left shoulder disorder. The examiner must review the entire claims file, to include a copy of this remand, in conjunction with the examination. Based on this review of the record, and examination if provided, the examiner should provide opinions that respond to the following: (a.) Whether the Veteran's current left shoulder disorders (including degenerative joint disease, and rotator cuff tear and labral tear, status post-surgical repair,) at least as likely as not began in or is otherwise related to service, to include complaints of persistent left shoulder pain as well as injury from 1995 MVA. (b.) For arthritis involving the left shoulder (as noted in the June 2009 private MRI report), is it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) Whether the Veteran's current left shoulder is at least as likely as not proximately due to service-connected disability or aggravated beyond its natural progression by service-connected disability. Note (1): If another etiology is the more likely cause, the clinician must identify that cause and provide a complete explanation of his or her reasoning. Note (2): The clinician is not required to accept the Veteran's theory that he has experienced left shoulder problems since service if this is incongruous with the record or accepted medical principles; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation or rejects any history provided. Note (3): An adequate medical opinion may not be predicated solely on the absence of medical literature supporting the Veteran's theory of causation or aggravation; and, to the extent medical literature is relied upon to support the conclusion reached, the clinician must discuss the literature vis-à-vis facts specific to the Veteran. A complete rationale for all opinions must be provided. 7. Schedule the Veteran for a VA examination, to include a Gulf War examination, to determine the nature and etiology of the Veteran's claimed chronic fatigue. The examiner must review the entire claims file, to include a copy of this remand, in conjunction with the examination. Based on this review of the record, and examination if provided, the examiner should provide opinions that respond to the following: (a.) State whether the symptoms relating to the Veteran's claimed chronic fatigue is/are attributable to a known clinical diagnosis. (b.) Is the etiology of the Veteran's chronic fatigue (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (c.) Is the pathophysiology of the Veteran's chronic fatigue (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (d.) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's chronic fatigue was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. 8. Obtain an addendum medical opinion from an appropriate physician that addresses the following questions as to the Veteran's claimed muscle and joint pain in the ankles, hands, and wrists. The examiner must review the entire claims file, including a copy of this remand. The examiner is asked to provide responses to the following: (a.) Is the etiology of the Veteran's muscle and joint pain in the ankles, hands, and wrists (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. (b.) Is the pathophysiology of the Veteran's muscle and joint pain in the ankles, hands, and wrists (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. (c.) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's muscle and joint pain in the ankles, hands, and wrists was incurred in, or is otherwise related to, his active service, to include his Gulf War service as well as January 1995 MVA incident? A complete rationale must be provided for all opinions expressed. 9. Obtain an addendum medical opinion from an appropriate physician that addresses the following questions as to the Veteran's OSA, hypertension, and erectile dysfunction. (a.) Whether it is at least as likely as not that any of the Veteran's OSA, hypertension, and/or erectile dysfunction was (i) proximately caused by or due to, or (ii) aggravated by his service-connected depression disability, to include medication used to treat his disability. (b.) Whether it is at least as likely not that the Veteran's service-connected disabilities caused the Veteran to become obese. i. If so, whether the resulting obesity was a substantial factor in causing the Veteran's OSA, hypertension, and/or erectile dysfunction. ii. If yes, whether but for the Veteran's obesity, the Veteran would have developed OSA, hypertension, and/or erectile dysfunction. A complete rationale must be provided for all opinions expressed. 10. Obtain an addendum medical opinion from an appropriate physician that addresses the following questions as to the Veteran's pes planus. The examiner must review the entire claims file, including a copy of this remand. The examiner is asked to provide responses to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that there was an increase in severity of the pre-existing bilateral pes planus during service? (b.) If the examiner finds that there was an increase in severity during service, the examiner should further render an opinion as to whether any such increase was clearly and unmistakably (obvious and manifest) due to the natural progress of the disorder. NOTE (1): The term "clear and unmistakable evidence" means that the evidence cannot be misinterpreted or misunderstood, i.e., the evidence is undebatable. NOTE (2): This examiner should consider and discuss the diagnosis of asymptomatic, mild pes planus at service entry, in-service complaints of left foot and right foot pain, and the post-service VA and private treatment records. (c.) Whether it is at least as likely as not that any of the Veteran's current diagnosed foot disorders (e.g. pes planus, plantar fasciitis, hallux valgus, and hammertoes) were (i) proximately caused by or the result of, or (ii) aggravated by service-connected disability. (d.) Whether it is at least as likely not that the Veteran's service-connected disabilities caused the Veteran to become obese. i. If so, whether the resulting obesity was a substantial factor in causing or aggravating any of the Veteran's foot conditions. ii. If yes, whether but for the Veteran's obesity, the Veteran's would have developed his current foot disorders A complete rationale must be provided for all opinions expressed. 11. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 12. Readjudicate and issue a Supplemental Statement of the Case as to all issues remanded here if the benefit sought on appeal is not granted in full. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M., 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.