Citation Nr: 21075326 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 14-42 349 DATE: December 20, 2021 REMANDED Entitlement to service connection for a gastrointestinal disability, claimed as irritable bowel syndrome (IBS) and including as secondary to service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), is remanded. Entitlement to service connection for a headache condition, to include migraine headaches, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1988 to October 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in October 2018, September 2020,, and August 2021. The case has been returned to the Board at this time for further appellate review. In October 2017, the Veteran testified at a hearing before the undersigned. Unfortunately, the transcript from this hearing is unavailable. In August 2018, the Veteran declined the opportunity to present testimony at an additional Board hearing. She also withdrew her request for a hearing and submitted a copy of an August 2018 deposition. This appeal has been advanced on the Board's docket pursuant to38 C.F.R. § 20.900(c). A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Recent case law held that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability." Thus, a specific diagnosis is not required to establish service connection for symptoms that result in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). 1. Entitlement to service connection for a gastrointestinal disability, claimed as irritable bowel syndrome (IBS) and including as secondary to service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), is remanded. 2. Entitlement to service connection for a headache condition, to include migraine headaches, is remanded. It appears the Veteran may have applied for disability benefits through the Social Security Administration. Medical records associated with this benefits claim are not yet associated with the claims file. When there has been a determination regarding SSA benefits, the records concerning that decision must be obtained, if potentially relevant. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). In August 2021, the Board remanded these claims to obtain additional etiology opinions as to the Veteran's IBS and migraine headache disabilities. The examiner was asked to identify all headache and gastrointestinal conditions over the entire appeal period and to opine whether any disability identified was at least as likely as not directly related to the Veteran's active service. The Board also requested an opinion as to whether IBS was at least as likely as not secondary to the Veteran's service-connected PTSD with MDD. The remand directives advised that the Veteran is competent to report her symptoms and history. The examiner was required to acknowledge and consider her reports and, if the reports were dismissed, to provide a reason a reason for disregarding them. He or she was advised that the absence of contemporaneous supporting medical evidence, without additional rationale, was an insufficient reason to dismiss the reports. Additional etiology opinions for IBS were obtained in September 2021. The examiner opined the IBS was less likely than not directly caused by active service or caused by or aggravated by service-connected PTSD. He supported each opinion by noting medical records "did not reveal continuous ongoing medical treatment or aggravation of acute or chronic IBS gastrointestinal condition during time of discharge from active military service to present day." In an addendum opinion from September 2021, the examiner noted the Veteran's subjective reports of IBS symptoms, but dismissed them because they were not documented by contemporaneous medical records. This is insufficient rationale to dismiss the Veteran's competent statements. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (that reports of symptomatology are not supported by contemporaneous clinical evidence does not render them inherently not credible). Moreover, it does not contain the analysis required by the Board's August 2021 remand directives. See Stegall, supra. Additional etiology opinions for migraine headaches were obtained in September 2021. The examiner initially opined migraine headaches were less likely than not directly caused by active service because the condition developed years after the Veteran separated from active service. In an addendum opinion, the examiner noted the Veteran's subjective reports of headaches, but dismissed them because they were not documented by contemporaneous treatment records. The etiology opinions for migraine headaches are insufficient. See Buchanan, supra; see also Stegall, supra. The matters are REMANDED for the following action: 1. Obtain outstanding federal records from the Social Security Administration (SSA) with respect to any claim filed for disability benefits, so include any underlying medical documentation. Document all requests for information as well as all responses in the claims file. 2. Obtain an addendum opinion to address the questions below. The examiner should fully review the claims file including prior VA examinations of October 2010 and July 2019, March 2014 testimony before the RO, and an August 2018 deposition. If the examiner determines that an additional in-person examination is required to fully address the questions, schedule an examination. The examiner should identify any diagnosis of IBS over the appeal period (from February 2010). If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is IBS (or symptoms representing a gastrointestinal disability), present at any time over the appeal period (from February 2010), at least as likely as not related to service, including in-service complaints of gastrointestinal symptoms? Is IBS (or symptoms representing a gastrointestinal disability), at any time over the appeal period (from February 2010) at least as likely as not proximately due to the Veteran's service-connected psychiatric disability including stress associated with the psychiatric condition or medications used to treat the psychiatric condition.? Is IBS (or symptoms representing a gastrointestinal disability), at any time over the appeal period (from February 2010) at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected psychiatric disability including stress associated with the psychiatric condition or medications used to treat the psychiatric condition.? The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The Veteran's report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. 3. Obtain an addendum opinion to address the questions below. The examiner should fully review the claims file including prior VA examinations of October 2010 and July 2019, March 2014 testimony before the RO, and an August 2018 deposition. If the examiner determines that an additional in-person examination is required to fully address the questions, schedule an examination. The examiner should identify any diagnosis of a headache disability over the appeal period (from February 2010). If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is a migraine headache disability (or symptoms representing a headache disability), present at any time over the appeal period (from February 2010), at least as likely as not related to service, including headaches onset soon after separation from service? The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The Veteran's report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.