Citation Nr: 21013233 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-21 643 DATE: March 9, 2021 ORDER An effective date prior to October 26, 2015, for the award of service connection for unspecified depressive disorder is denied. New and material evidence having been received, the application to reopen the claim for service connection for a headache disorder is granted. A separate rating of 60 percent, but no higher, for bowel incontinence associated with service-connected irritable bowel syndrome (IBS) with chronic diarrhea, is granted, subject to the laws and regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for a lower and middle back disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for pes planus is remanded. Entitlement to service connection for a headache disorder, to include as secondary to service-connected IBS with chronic diarrhea, is remanded. Entitlement to service connection for chronic fatigue syndrome, claimed as secondary to service-connected IBS with chronic diarrhea, is remanded. FINDINGS OF FACT 1. On August 9, 2012, VA received the Veteran’s original claim for service connection for depression and a headache disorder. 2. In a final October 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for depression and a headache disorder, characterized as migraine headaches. 3. The Veteran did not file a formal or informal claim to reopen her previously denied claim for service connection for depression after issuance of the final October 2013 rating decision and prior to the receipt of her formal claim on October 26, 2015. 4. Evidence added to the record since the final October 2013 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a headache disorder. 5. For the entire appeal period, the Veteran has stool incontinence associated with her IBS with chronic diarrhea that most nearly approximates extensive leakage and fairly frequent involuntary bowel movements, without a complete loss of sphincter control. CONCLUSIONS OF LAW 1. The October 2013 rating decision that denied service connection for a headache disorder, characterized as migraine headaches, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). 2. The criteria for an effective date prior to October 26, 2015, for the award of service connection for depression have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for a headache disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for a separate 60 percent rating, but no higher, for stool incontinence associated with IBS with chronic diarrhea have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.113, 4.114, Diagnostic Code (DC) 7332. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to January 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in July 2009 and March 2016 by a Department of Veterans Affairs (VA) Regional Office. In July 2015, the Veteran and her spouse testified at a Board hearing before the undersigned Veterans Law Judge in regard to her claims for service connection for a right shoulder disorder, lower and middle back disorder, and pes planus. A transcript of the hearing is associated with the record. In December 2015, the Board remanded such issues for additional development and, in November 2017, denied service connection for a right shoulder disorder and pes planus, and remanded the claim for service connection for a lower and middle back disorder for additional development. Thereafter, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), which vacated the Board’s decision as to the denial of service connection for right shoulder and pes planus, and remanded the case for further consideration. In June 2019, the Board remanded the claims for service connection for a right shoulder disorder, a lower and middle back disorder, and pes planus for additional development and they now return for further appellate consideration. While on remand, the Veteran also perfected her appeal in regard to claims for an effective date prior to October 26, 2015, for the award of service connection for unspecified depressive disorder, whether new and material evidence has been received in order to reopen a claim for service connection for a headache disorder, service connection for chronic fatigue syndrome, and entitlement to a separate rating for bowel incontinence in association with her service-connected IBS with chronic diarrhea. The Board notes that the Veteran also perfected appeals regarding the issues of entitlement to service connection for sleep apnea and gastroparesis under the modernized appeal system, known as the Appeals Modernization Act (AMA). Thus, they will be the subject of Board decisions issued at a later date, if otherwise in order. 1. Entitlement to an effective date prior to October 26, 2015, for the award of service connection for unspecified depressive disorder. The Veteran contends that an effective date prior to October 26, 2015, for the award of service connection for unspecified depressive disorder is warranted. Specifically, she claims that the effective date should be August 9, 2012, the date her original claim was received. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110 (a). Specifically, under 38 C.F.R. § 3.400 (q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400 (r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). VA received the Veteran’s original claim for service connection for depression on August 9, 2012. In an October 2013 rating decision, the AOJ denied such claim on the basis that there was no medical evidence showing that a current psychiatric disorder had been diagnosed. Later that same month, the Veteran was advised of the decision and her appellate rights. However, she did not enter a notice of disagreement as to such rating decision. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. Consequently, the October 2013 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). Thereafter, on October 26, 2015, VA received the Veteran’s application to reopen her previously denied claim of entitlement to service connection for depression. In this regard, the Board notes that the Veteran did not file a formal or informal claim to reopen her previously denied claim for service connection for depression, or any claim for benefits, after issuance of the final October 2013 rating decision and prior to the receipt of her formal claim on October 26, 2015. Sellers v. Wilkie, 965 F.3d 1328 (2020) (holding that “a veteran’s formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality.”). Accordingly, the effective date of the award of service connection for unspecified depressive disorder can be no earlier than the date of the Veteran’s application to reopen her previously denied claim. In this regard, the record clearly shows that, following the final rating decision issued in October 2013, the earliest document that can be construed as a claim for compensation, whether formal or informal, was received on October 26, 2015, when the Veteran filed a petition to reopen such previously denied claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Thus, an effective date prior to October 26, 2015, for the award of service connection for unspecified depressive disorder is not warranted and the Veteran’s appeal must be denied. 2. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a headache disorder, previously characterized migraine headaches. By way of background, the Veteran’s claim for service connection for a headache disorder, characterized as migraine headaches, was originally denied in an October 2013 rating decision. At such time, the AOJ considered the Veteran’s service treatment records (STRs), post-service treatment records, and a September 2013 VA examination, and determined that, while the evidence of record reflected the Veteran had an in-service complaint of a migraine headache, such did not show a current diagnosis of a headache disorder that occurred in or was caused by her military service. Consequently, the AOJ denied service connection for a headache disorder, characterized as migraine headaches. In October 2013, the Veteran was advised of the decision and her appellate rights, but she did not enter a notice of disagreement with such decision. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. Therefore, the October 2013 rating decision is final. 38 U.S.C. § 7105(c) 2012; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 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 means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted previously, while the September 2013 rating decision acknowledged the Veteran’s in-service report of headaches, such denied her claim for service connection for a headache disorder based on a lack of evidence demonstrating a current diagnosis of a headache disorder related to her military service. The evidence received since the final October 2013 rating decision includes the Veteran’s lay statements describing how her headaches impact her daily functioning, and the advancement of a new theory of entitlement where she alleges that such are secondary to her service-connected IBS with chronic diarrhea. Thus, as the newly received evidence addresses the basis of the prior denial, i.e., a current disability as defined by VA regulations related to service or a service-connected disability, it is not cumulative or redundant of the evidence of record at the time of the October 2013 decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a headache disorder. Accordingly, new and material evidence has been received and the Veteran’s claim for such disorder is reopened. 3. Entitlement to a separate rating for stool incontinence associated with service-connected IBS with chronic diarrhea. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The appeal period before the Board stems from the Veteran’s October 26, 2015, claim for an increased rating for her service-connected IBS with chronic diarrhea, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As an initial matter, the Board notes that, in her December 2019 substantive appeal, the Veteran stated that she was not appealing the 30 percent rating assigned for her service-connected IBS with chronic diarrhea; rather, she was contending that her bowel incontinence associated with such disability that should be separately rated under DC 7332. Thus, the Board will limit its review as to whether the Veteran is entitled to a separate rating for bowel incontinence associated with her service-connected IBS with chronic diarrhea. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board notes that the Veteran’s IBS with chronic diarrhea is evaluated as 30 percent disabling for the entire appeal period pursuant to 38 C.F.R. § 4.114, DC 7319. In this regard, a 30 percent evaluation is the highest evaluation available under such DC for IBS, and contemplates severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Id. The Board further notes that 38 C.F.R. § 4.114 prohibits simultaneous evaluations under DCs 7301 to 7329 inclusive, 7331, 7342, and 7345 to 7348 inclusive. Rather, a single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See also 38 C.F.R. § 4.113 (coexisting abdominal conditions); 38 C.F.R. § 4.14 (avoidance of pyramiding). Here, the Veteran’s IBS is rated under DC 7319, which does not contemplate bowel incontinence, and a separate evaluation under DC 7332 for impairment of sphincter control is not expressly prohibited by 38 C.F.R. § 4.114. Furthermore, as such disorder has been established by the medical evidence to be associated with her service-connected IBS with chronic diarrhea, the Board finds that a separate rating for such manifestation is warranted under DC 7332. Specifically, DC 7332 provides a noncompensable rating for healed rectum and anus or slight impairment of sphincter control without leakage. A 10 percent rating is assigned for constant slight impairment of sphincter control or occasional moderate leakage. A 30 percent rating is assigned for occasional involuntary bowel movements or impairment of sphincter control necessitating the wearing of a pad. A 60 percent rating is assigned for extensive leakage due to impairment of sphincter control and fairly frequent involuntary bowel movements. A maximum 100 percent rating is assigned for complete loss of sphincter control. After a review of the record, the Board finds that the Veteran is entitled to a separate rating of 60 percent, but no higher, for bowel incontinence associated with her service-connected IBS with chronic diarrhea. In this regard, in her aforementioned substantive appeal, the Veteran stated that she has uncontrolled bowel movements and needed to be near a restroom. She also wore adult diapers and had to change them more than five times per day. VA treatment records dated in November 2015 and May 2016 reflect that the Veteran had IBS mostly with constipation and sometimes diarrhea with incontinence. Additionally, during her February 2016 intestinal VA examination, the Veteran reported that she had loose stools at least twice a day associated with her service-connected IBS. Further, at a September 2019 VA examination, and the examiner found that the Veteran had diagnoses of dumping syndrome and stool incontinence since 2013. In this regard, she reported that her symptoms were so severe that she had agreed to an acral nerve stimulator. The examiner also noted that the Veteran had to rush to the bathroom every 2 to 3 hours due to her IBS, dumping syndrome, and stool incontinence. Additionally, the September 2019 examiner opined that that the Veteran’s bowel incontinence was at least as likely as not proximately due to or the result of her service-connected IBS. In support thereof, she reasoned that one of the factors for developing IBS was food intolerance and food allergy, and the Veteran reported an episode of food issue that occurred in service. She noted that the Veteran was subsequently diagnosed with IBS and the complications noted on the examination, which included stool incontinence. The Board also notes that, in her opinion regarding the Veteran’s urinary incontinence, the examiner explained that severe constipation, as reported by the Veteran, was an etiologic factor of incontinence as the bladder and bowel share some nerve branches and frequent straining can also cause weakness to the pelvic floor, and thus, such was related to her IBS. Similarly, in July 2019, the Veteran’s private physician, Dr. V.G. stated that her incontinence was due to her IBS and, in a subsequent undated opinion, E.K., a physician’s assistant, indicated that the Veteran’s physician, Dr. V.G. had reviewed her medical records and diagnosed bowel incontinence that was 50 percent more likely than not a separate medical condition that was secondary to her IBS. Further, while such had been treated by multiple methods, including surgery, nothing had eliminated the problem. Therefore, based on the foregoing, the Board finds that the Veteran’s currently diagnosed bowel incontinence is related to her service-connected IBS with chronic diarrhea and more nearly approximates the criteria for a 60 percent rating under DC 7332 as she had extensive leakage and fairly frequent involuntary bowel movements throughout the entire appeal period. However, a rating in excess of 60 percent is not warranted as the evidence of record does not indicate, nor does she contend, that she has complete loss of sphincter control. The Board further finds that no staged ratings are warranted as the Veteran’s disability has been consistent throughout the period on appeal. See Hart, supra. Further, neither the Veteran nor her representative has raised any other issues nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this decision, the Board has applied the benefit of the doubt doctrine, which has resulted in the award of a separate 60 percent rating for the Veteran’s bowel incontinence for the entire appeal period. However, as the preponderance of the evidence is against a rating in excess of 60 percent for such disability, that doctrine is not applicable in such regard and her increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 4. Entitlement to service connection for lower and middle back disorder. Pursuant to the June 2019 remand, an addendum opinion addressing the etiology of the Veteran’s degenerate lumbar spondylosis was obtained in December 2019, at which time the examiner opined that such disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, he provided the same rationale he gave in his December 2017 opinion without accepting as true the Veteran’s reports of falling from the monkey bars during basic training as directed in the June 2019 remand. Thus, the Board finds that a remand is necessary to obtain another addendum opinion addressing such matter. 5. Entitlement to service connection for a right shoulder disorder. Pursuant to the June 2019 remand, the Veteran was afforded a VA examination in December 2019 in order to ascertain the nature and etiology of her claimed right shoulder disorder. At such time, the examiner diagnosed right shoulder impingement syndrome, acromioclavicular joint osteoarthritis, and trapezius/ rhomboid muscle spasms, and opined that such disorders were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, she provided an inadequate rationale as she reasoned that the Veteran’s post-service treatment records were silent for complaints of shoulder pain until 2017, which was over 27 years later. Thus, she concluded it was less likely as not related to service from 1989. Nonetheless, the sole basis for a negative opinion cannot be based on the lack of medical documentation demonstrating a continuity of care, especially in light of the fact that the Veteran has reported the onset of right shoulder pain in service with a continuity of symptomatology thereafter. Therefore, the Board finds a remand is necessary to obtain an addendum opinion that addresses all the evidence of record, to include the Veteran’s lay statements regarding her in-service and post-service symptoms. 6. Entitlement to service connection for pes planus. Pursuant to the June 2019 remand, an addendum opinion addressing the etiology of the Veteran’s pes planus was obtained in December 2019, at which time the examiner determined that such disorder constitutes a developmental defect as her tenderness and arch have been stable without improvement or without worsening by radiological studies. He also found that no additional disability due to disease or injury was superimposed upon such defect during the Veteran’s military service as the first sign of mild pes planus was in 2009, and widened boots did not cause flat feet. He also noted that the Veteran’s only significant complaint and diagnosis of feet during service was from an acute, treated episode of athlete’s feet. However, the examiner’s rationale contradicts his opinion as he noted that the Veteran’s pes planus was a developmental defect, but the first sign of such disorder was not until 2009. Thus, as it is still unclear as to whether the Veteran’s currently pes planus is considered a defect, which presumes that such would have pre-existed her military service, the Board finds that a remand is necessary to obtain another addendum opinion that addresses such concerns. 7. Entitlement to service connection for a headache disorder, to include as secondary to service-connected IBS with chronic diarrhea. The Veteran contends that she has a headache disorder that is directly related to her military service and/or is secondary to her service-connected IBS with chronic diarrhea. In this regard, her STRs reveal that, in December 1986, the Veteran reported that she had migraine or other headaches. In September 1988, she complained of lightheadedness, nausea, and headaches and an assessment of dehydration and viral syndrome was noted. During her September 2013 VA examination, the Veteran reported that her headaches had their onset during her military service, but it was first thought that she had allergies. She also stated that she had headache pain, but the examiner found that she did not have a diagnosis of a headache disorder. During her February 2016 VA examination, the examiner also found that the Veteran did not have a diagnosis of a headache disorder. However, she again reported that she experienced headache pain, which made her feel like she was going to throw up. The examiner also opined that the migraine headaches were not caused by or as the result of IBS as such did not cause headaches and there was no physiological connection between headaches and IBS. The examiner also questioned if the Veteran was having a cluster of symptoms, and indicated that it was most likely IBS, headaches, and chronic fatigue were misdiagnosed and a mental disorder should be looked at as the primary condition. Nonetheless, as the Veteran reported headaches that interfered with her daily functioning, the Board finds that a remand is necessary to obtain an addendum opinion so as to determine if the Veteran’s headache pain results in a functional impairment of earning capacity and if so, the etiology of such disorder. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). 8. Entitlement to service connection for chronic fatigue syndrome, claimed as secondary to service-connected IBS with chronic diarrhea. As an initial matter, the Board notes that the evidence does not show, and the Veteran does not contend, that her chronic fatigue had its onset during service, or is directly related to any aspect of her military service. Rather, she claims that her chronic fatigue is caused or aggravated by her service-connected IBS with chronic diarrhea. In this regard, during her February 2016 VA examination, the Veteran reported that she had low energy and always felt tired. She also stated that she had other issues, did not sleep a lot because of the pain, and did not have energy or the desire to do anything. The examiner found that the Veteran did not have a diagnosis of chronic fatigue syndrome. Nonetheless, similar to the Veteran’s headache claim, the examiner opined that chronic fatigue syndrome was not caused by or the result of IBS as such did not cause chronic fatigue syndrome and there was no physiological connection between such disorders. He again questioned if the Veteran was having a cluster of symptoms, and indicated that it was most likely IBS, headaches, and chronic fatigue were misdiagnosed and a mental disorder should be looked at as the primary condition. Thus, the Board finds that a remand is necessary to obtain an addendum opinion to determine the nature and etiology of the Veteran’s claimed chronic fatigue. The matters are REMANDED for the following action: 1. Forward the record, to include a copy of this remand, to an appropriate VA examiner other than the December 2017/December 2019 examiner in order to obtain an opinion addressing the etiology of the Veteran’s currently diagnosed back disorder. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s degenerative lumbar spondylosis is related to her military service, to include her report of an injury to the back after falling from the monkey bars during basic training and/or her military duties that required her to carry heavy gear? The examiner is advised that, for the purpose of offering the opinion, he or she should accept such report of an in-service injury as true. In offering such opinion, the examiner must consider and discuss the lay statements of record regarding the onset of the Veteran’s back disorder and the continuity of symptomatology of such disorder. Please be advised that the absence of evidence of complaints, treatment, or a diagnosis referable to a back disorder in the Veteran’s service treatment records cannot serve as the sole basis for a negative opinion. The examiner is also advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. Thus, if the examiner rejects the Veteran’s lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records or the fact that the Veteran is not qualified to diagnose any disability based on the reported symptomatology. A rationale for any opinion offered should be provided. 2. Return the record, to include a copy of this remand, to the VA examiner who conducted the December 2019 VA right shoulder examination. If she is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s right shoulder disorder, currently diagnosed as right shoulder impingement syndrome, acromioclavicular joint osteoarthritis, and trapezius/rhomboid muscle spasms, is related to her military service, to include her reports of pain and muscle spasm in her right shoulder in July 1989 and/or due to an injury to the right shoulder after falling from the monkey bars during basic training? The examiner is advised that, for the purpose of offering the opinion, he or she should accept such report of an in-service injury as true. In offering such opinion, the examiner must consider and discuss the lay statements of record regarding the onset of the Veteran’s right shoulder disorder and the continuity of symptomatology of such disorder. The examiner is advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. Thus, if the examiner rejects the Veteran’s lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records or the fact that the Veteran is not qualified to diagnose any disability based on the reported symptomatology. A rationale for all opinions offered should be provided. 3. Forward the record, to include a copy of this remand, to an appropriate VA examiner other than the February 2016/December 2019 examiner in order to obtain an opinion to determine the current nature and etiology of the Veteran’s currently diagnosed pes planus. Following a review of the record, the examiner should state whether the Veteran’s pes planus constitutes a congenital or developmental defect or a disease (per VAOPGCPREC 82-90, in general, a congenital abnormality that is subject to improvement or deterioration is considered a disease while a defect is defined as a structural or inherent abnormality or condition that is more or less stationary in nature). If the examiner finds that the Veteran’s pes planus is a defect, he or she should reconcile such determination with the December 2019 VA examiner’s finding that the first sign of mild pes planus was in 2009. (A) If the Veteran’s pes planus is considered a defect, was there additional disability due to disease or injury superimposed upon such defect in service? If so, please identify the additional disability. (B) If the Veteran’s pes planus is considered a disease, is there clear and unmistakable evidence that the disorder pre-existed service? (i) If so, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the Veteran’s pes planus did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran’s pes planus, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) If not, then the examiner is asked whether it is at least as likely as not that the Veteran’s pes planus is directly related to service, to include her reports of foot pain in November 1989, at which time examination revealed laxity of the ligaments, thought to be congenital, and a pronated foot. A rationale should be provided for any opinion offered. 4. Forward the record, to include a copy of this remand, to an appropriate VA examiner other than the February 2016 examiner in order to obtain an opinion to determine the current nature and etiology of the Veteran’s claimed headache disorder. Following a full review of the record, the examiner should address the following inquiries: (A) Is it at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran’s reported headache pain results in a functional impairment of earning capacity, i.e., a disability for VA purposes? (B) If so, is it at least as likely as not (i.e. a 50 percent or greater probability) that such disability had its onset in, or is otherwise related to, the Veteran’s military service, to include her December 1986 report of having migraine or other headaches and/or her September 1988 complaint of headaches? (C) The examiner must further opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that any current headache disability is caused or aggravated by her service-connected IBS with chronic diarrhea. Why or why not? For any aggravation found, please state, to the best of your ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering such opinion, the examiner must consider and discuss the lay statements of record regarding the onset of the Veteran’s headache disorder and the continuity of symptomatology of such disorder. The examiner is advised that a lack of post-service treatment records demonstrating a continuity of care cannot form the sole basis of a negative opinion. Thus, if the examiner rejects the Veteran’s lay statements as to onset and/or a continuity of symptomatology, he or she should provide a reason for doing so beyond the mere lack of corroborating records or the fact that the Veteran is not qualified to diagnose any disability based on the reported symptomatology. A rationale should be provided for any opinion offered. 5. Forward the record, to include a copy of this remand, to an appropriate VA examiner other than the February 2016 examiner in order to obtain an opinion to determine the current nature and etiology of the Veteran’s claimed chronic fatigue syndrome. Following a full review of the record, the examiner should address the following inquiries: (A) Please indicate whether the Veteran has a diagnosis of chronic fatigue separate and distinct from her other diagnosed disorders. Why or why not? (B) If so, please offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder is caused or aggravated by her service-connected IBS with chronic diarrhea. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.